Punjab-Haryana High Court
Smt. Krishna Devi vs Brij Bhushan on 7 September, 2006
Equivalent citations: AIR2007P&H43, (2007)147PLR170, AIR 2007 PUNJAB AND HARYANA 43, 2007 (2) ALL LJ NOC 321, 2007 (2) ABR (NOC) 396 (P&H), 2007 (2) AJHAR (NOC) 559 (P&H), 2007 AIHC NOC 251, (2007) 3 CIVILCOURTC 8, (2007) 1 HINDULR 698, (2007) 1 MARRILJ 249, (2007) MATLR 361, (2007) 2 RECCIVR 556, (2007) 3 PUN LR 170
ORDER H.S. Bhalla, J.
1. The marriage between the parties went to rocks and husband Brij Bhushan was left with no other option but to file a petition under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act") against his wife Krishna Devi for dissolution of their marriage by a decree of divorce.
2. As per the case of the respondent-husband, the marriage between the parties was solemnized on 16-2-1975 according to Hindu rites and after marriage, they lived together as husband and wife leading to the birth of two children Anoop Kumar and Rahul. During the period they lived together, the behaviour of the appellant-wife towards the respondent-husband and his family members was cruel and she along with her brother used to beat and insult him and ultimately, he was thrown out of the matrimonial home and therefore, he faced mental and physical cruelty at the hands of the appellant-wife. It is further pleaded that the appellant-wife has withdrawn herself from the society of the respondent-husband without any reasonable cause and she has deserted him for the last more than four years. Hence the present petition.
3. On notice, the petition was contested by the appellant-wife admitting the factum of marriage on 16-2-1975 and that two children were born from their wedlock. Denying the desertion on her part, it was pleaded that it was the respondent-husband who had deserted her for the last more than four years without any reasonable excuse and without caring for the maintenance of the appellant-wife and the children. It is further pleaded that the father of the respondent-husband along with others tried to alienate her share in the ancestral property. A civil suit was filed wherein the respondent husband made a statement in the Court undertaking to give l/6th share each to his sons. It is denied that she ever indulged in physical violence and refuted all the allegations pleaded in the petition and prayed for dismissal of the same.
4. In replication, the respondent-husband reiterated his stand taken in the petition and controverted the assertions of the written statement.
5. On the pleadings of the parties, following issues were framed by the trial Court:
1. Whether the petitioner is entitled to decree of divorce for dissolution of marriage? OPP
2. Relief.
6. Both the parties led their evidence in support of their case and the learned trial Court, after hearing the learned Counsel for the parties and having applied its mind to the facts of the case in hand, allowed the petition and passed a decree in favour of the husband by virtue of which marriage between the parties was dissolved. Aggrieved against the judgment and decree, the appellant-wife knocked the door of this Court through the appeal in hand.
7. I have heard the learned Counsel for the parties on either side and have also gone through the record carefully.
8. It is admitted case of both the parties that they were married on 16-2-1975 and two children were born from their wedlock and that they are living separately from each other for the last more than four years from the date of filing of the present petition which was filed on 17-12-1996. It is the case of the respondent husband that the appellant wife has thrown him out of the matrimonial home with the help of his brother without any reasonable cause whereas as per the stand of the appellant-wife, it was the respondent-husband who had deserted her without any reasonable excuse. However, the fact remains that the parties are living separately from each other for the last more than four years. In these circumstances, the question arises as to who was the defaulting party for deserting the other spouse ?
9. It would not be out of place to mention here that the respondent-husband has sought divorce on the ground of desertion by levelling the allegations of cruelty against appellant-wife. It must be borne in mind that to constitute cruelty, the conduct complained of should be grave and weighty so as to come to the conclusion that the petitioner spouse cannot be reasonable expected to live with the other spouse. It must be something more serious than ordinary wear and tear of married life. The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violation is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty.
10. The Hon'ble Apex Court in Dastane v. Dastane examined the matrimonial ground of cruelty as it was Stated in old Section 10(1)(b) and observed that any inquiry covered by that provision had to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injuries to live with the respondent. It was further observed that it was not necessary, as under the English law that the cruelty must be of such a character as to cause danger to life, limb or health, or as to give rise to a reasonable apprehension of such a danger though, of course, harm or injury to health, reputation, the working character or the like would be an important consideration in determining whether the conduct of the respondent amounts to cruelty or not.
11. Regarding the mental cruelty, it was observed by the Hon'ble Apex Court in V. Bhagat v. D. Bhagat that "mental cruelty in Section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to life with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner....
12. Cruelty for the purpose of Section 13(1)(ia) is to be taken as a behaviour by one spouse towards the other which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty the mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In the case of mental cruelty, it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the respondent-husband in the divorce petition has been subjected to mental cruelty due to conduct of the other.
13. Judged in the light of the principles above. I find from the record that after some time of the marriage, the matrimonial relations between the parties was not normal. It is the case of the respondent-husband that he owned a shop-cum-flat, the ground floor of which was let out by the appellant-wife to Ram Lal Vidya Sagar at Rs. 30,000/- per annum. Narrating the cause of differences between the parties, the respondent-husband has stated that he started business of brick-kiln and invested Rs. 50,000/- and as her parents refused to return the said money to him, therefore, differences arose between the parties and ultimately, he was turned out of the residential house. But this fact was denied by the appellant-wife and pleaded that the respondent-husband left her and the children without caring for their maintenance etc. But after having gone through the record, it does not appear plausible that the respondent-husband would leave his own property without any reason and would wander in the streets without having a penny with him, especially when the appellant-wife has not levelled any allegation of ill-vices against him. Though the appellant-wife, while appearing in the witness box, has deposed that the respondent husband used to consume liquor from morning to evening and used to call her with bad names but after having gone through the written statement, it is found that no such plea was raised by her in the written statement and as such, her statement to this effect, which is beyond pleadings, cannot be taken into consideration and liable to be rejected.
14. At this stage, I would also like to observe that the factum of separation is also proved from the documentary evidence, which is a copy of plaint, Ex. P. 1 of a suit, which was filed by the wife along with her sons against their father and this suit was filed on 31-5-1996. In this suit, it has been categorically pleaded by the wife and the Children that whereabouts of Brij Bhushan (respondent) are not known for the last about three years and plaintiff No. 3 (present appellant) is maintaining herself with the help of her father, though it was the duty of defendant No. 1 (respondent) to maintain them. All this shows that this fact is denied that the parties are living separately for the last four years prior to the filing of the petition. The divorce is being sought on the ground of desertion and cruelty. At this stage, it is required to be seen as to which spouse was guilty of deserting the other spouse and as to which spouse caused cruelty. It is again proved on record that the husband was turned out by the wife from the matrimonial house, which was owned by him and then again after having gone through the record, it becomes clear that the appellant-wife is trying to change her stand at her own will. On one side, she stated that in the year 1991 -92, her husband met with an accident and she looked after him during that period, whereas as per the respondent-husband, he met with an accident in the year 1990 and got fracture on his right leg and the appellant-wife did not care for him. Then again in the civil suit, she has stated that the whereabout of the respondent-husband were not known, whereas she has deposed before the trial Court that she had been serving the respondent. This contradictory stand of the wife shows that she is telling a lie and in fact, she has no legs to stand and an inevitable inference can be drawn that the husband was being deserted by the wife without any reasonable cause.
15. From the evidence available on the record, it is crystal clear that the appellant wife by retaining the house of the husband and turning him out of the house, has withdrawn herself from the society of the respondent-husband without any plausible reason. Desertion is an act of forsaking with an intention not to join the husband. There must be an intention on the part of the deserting spouse either to join the matrimonial home and desertion must be without the consent on the part of the person deserted. In the present case, the appellant-wife has deserted the respondent-husband and she again wrongly pleaded in her civil suit that the whereabouts of the respondent were not known to them and on the other hand, she has developed the case that when the husband suffered fracture, she used to look after him. All this shows that truth is not coming out of the mouth of the wife and for the sake of property, the husband was turned out of his own house with the help of her major sons. Every husband would like to enjoy the warmth of his married life and in the instant case, the husband has been thrown out of the house and then again seeing it from a different angle, to my mind, marriage without vigorous sexual activity is an anathema and denial of sexual activity in marriage has an extremely unfavourable influence on the mind and part of the person concerned and leads to depression and frustrations. To force a husband to such a sexless life, would danger his physical as well as mental health and all this is nothing but cruelty. In a case where the wife voluntarily deprives the husband of her society and cohabitation for a long period, it is a case of mental and moral cruelty on the part of the wife. For obtaining a decree on the ground of desertion and cruelty, the husband has to prove desertion for not a period of less than two years without any reasonable cause or against the wishes of the other spouse. Two essential conditions must be there for the offence of desertion to be completed. The factum of separation and intention to bring cohabitation permanently to an end (animus deserendi). In the present case, admittedly, both the parties are living separately for the last more than four years at the time of presentation of the present petition. In this case, the respondent-husband has alleged that he was turned out of the matrimonial home by the appellant-wife. It is not the case of the wife that she had take any step by virtue of which, both could live together. In these circumstances, a heavy onus lies on the wife to prove on record that there was a withdrawal from her side or that the withdrawal, if any, was for sufficient reason. From the material available on record, it stands proved that the husband was turned out of the matrimonial home and in fact, the wife was having an eye sour on account of an attempt of selling the ancestral property by the father of the husband and on account of that reason, a civil litigation between the parties had taken place. At the cost of repetition, I would again like to observe that it is also established on the record that the parties are living separately for the last more than four years and in fact. It is a broken marriage. It is a case of the wife that she is using the first floor of commercial shop situated in Anaj Mandi. Tohana for residential purposes and had let out found floor portion. Meaning thereby that, the wife is using the property of the respondent to his exclusion. Appellant-wife has also admitted during the course of pleadings as well as when she stepped into the witness box that she is in occupation of the property owned by her husband and this fact clearly spells out that the husband was made to leave his own property. In normal course, no one would like to leave his property and roam on the street without a penny with him.
16. It was held in Bimla Devi v. Singh Raj that in case of broken marriages, the grant of relief should be liberalised. In these circumstances, it is better to close the chapter specially when the parties cannot pull on together. In Rajwati v. Inderraj 1989 (1) HLR 261, which is a case of similar facts and circumstances, it was held that as the parties are living separately for the last more than eight years, it is better to close the chapter when the parties cannot live together and it is in the interest of both the parties that they are saved from wasting rest of their lives in litigation. The Hon'ble Apex Court in Chanderkala Trivedi v. Dr.S.P. Trivedi l993(2) All India Hindu Law Re-porter 264 (SC) laid down that if a marriage was dead and there was no chance of its being retrieved, it was better to bring it to an end. In this case, the marriage between the parties is dead both emotionally and practically. Continuance of marital alliance for name-sake is prolonging the agony and affliction.
17. Thus, taking into consideration the totality of the circumstances and the reasons recorded by the trial Court being weighty, I find no reason to interfere with the findings arrived at by the trial Court to the effect that the appellant-wife has treated the respondent husband with cruelty and she has deserted him for the statutory period and there is no inordinate delay, in filing the petition nor there is any other reasons to decline the relief of divorce.
18. No other point was urged or argued.
19. In view of the above, discussed legal and factual position, I find no merit in this appeal and the same is dismissed with no order as to costs.