Allahabad High Court
Prem Kumar Misra vs Smt. Madhu Misra on 4 March, 2013
Author: Sunil Ambwani
Bench: Sunil Ambwani, Bharat Bhushan
HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgment reserved on 10.1.2013 Judgment delivered on 04.3.2013
FIRST APPEAL NO.247 OF 2007
Prem Kumar Misra vs. Smt. Madhu Misra @ Gudia
Connected with
FIRST APPEAL NO.707 OF 2008
Smt. Madhu Misra @ Gudia vs. Prem Kumar Misra
Hon'ble Sunil Ambwani, J.
Hon'ble Bharat Bhushan, J.
1. We have heard Shri H.N. Shukla, learned counsel appearing for the appellant-husband, and Shri B.N. Mishra, learned counsel appearing for the defendant-wife.
2. The First Appeal No. 247 of 2007 arises out of a judgment and order dated 3.8.2007 passed by the Additional Principal Family Judge, Allahabad in Matrimonial Case No. 187 of 2003, by which he has dismissed the Suit filed by Shri Prem Kumar Misra-the husband for divorce under Section 13 (1) (i-a) of the Hindu Marriage Act, 1955 (in short, the Act) on the ground of cruelty by the respondent-wife.
3. The plaintiff-husband filed the suit for divorce under Section 13 (1) (i-a) of the Act on the ground of cruelty on the allegations that the marriage between Shri Prem Kumar Misra-the plaintiff-appellant and Smt. Madhu Mishra-the defendant-respondent was solemnized on 11.5.1995 at 409 Nai Basti Kydganj, Allahabad in accordance with the Hindu customs. He brought the respondent-wife after ceremonies of 'Gauna' on 14.2.2000 to his house No. 644/508 Netanagar, Kydganj, Allahabad. The respondent-wife started troubling the plaintiff and his relatives. She did not carry out the matrimonial duties as wife with full devotion. She used to fight with the plaintiff and the members of his family and used to abuse them. Whenever the plaintiff would approach her for maintaining relations with her as her husband, she used to rebuke and abuse him. After great difficulty and persuasion by his parents she finally agreed to consummate the marriage in October, 2010. A girl child Mitali was born on 11.8.2001. After the birth of the child the respondent-wife became more irritable and used to get angry on small pretext. She would throw utensils on the plaintiff and abuse him. The plaintiff, in order to maintain peace and fearing public criticism, did not complain.
4. The plaintiff-husband further stated in the plaint that six months after the birth of their daughter, the respondent-wife stopped working. She used to keep lying on the bed. The plaintiff took her for consultation of Gynecologist Dr. Neeta Verma, who did not find any illness or any physical ailment with her, on which the respondent-wife started abusing the doctor in her chamber. When the plaintiff tried to pacify her, she threw the child on the floor. He somehow managed to bring them home. On 16.3.2003 the respondent-wife insisted on visiting her parents. On his request to wait for few days until Holi when he would accompany her, she went to the kitchen and opened the valve of gas stove connected with cylinder on which the kitchen was filled with the gas. The defendant-wife tried to put the kitchen on fire on which the plaintiff and his family somehow brought her out of the kitchen. She continued to threaten the family to commit suicide and to implicate the entire family in a criminal case for demanding dowry. The plaintiff got terrorized and called her father. She left accompanied with her father and since thereafter she is living with her parents. The plaintiff's family has mentally broken down on the attitude, and temperament of the defendant and that it is no longer possible for the plaintiff to live with her.
5. In the written statement the defendant-wife admitted the marriage and 'Gauna' ceremony on 14.2.2000 after which she went to plaintiff's residential house in village Kotwa, where she lived with him and served the family as dutiful bride. The plaintiff was not employed on which the defendant's father gave him Rs. 4 lacs, several goods and jewelery in dowry. The plaintiff and his family members were not happy with the dowry and started demanding a car in dowry. She was troubled and subjected to cruelty for the demand. The plaintiff's uncle is serving as Constable in Regional Transport Office at Allahabad. His unemployed son was given a Maruti car in dowry, on which the family used to make complaints to her. The family would rebuke her for bringing insufficient dowry and taunted her by stating, that when an unemployed son of a Constable was gifted with the car in the dowry, their son serving in Merchant Navy should also get a Maruti car from her parents. She was not allowed to meet her parents on the third day of the marriage in the reception when her parents and family members visited her husband's family. The husband's family always threatened her for bringing insufficient dowry and ultimately turned her out of the matrimonial home in March, 2003. Since then the husband has deserted her and continues to make false allegation against her. The respondent-wife further stated in the written statement, that she is still willing to live with her husband as a married wife, and that the suit should be dismissed.
6. In the replication after reiterating the plaint allegations, it was stated by the plaintiff that the respondent-wife never visited the ancestral home. She used to live at 644/508 Netanagar, Kydganj, Allahabad after she came to live with him. He persuaded to go to his ancestral home but she refused to accompany him. He had never demanded dowry and it was not possible for him to live with the quarrelsome wife.
7. The Family Judge framed four issues. The first of the issues was whether the defendant Smt. Madhu Mishra has treated her husband with cruelty as stated in the plaint. The second, whether the plaintiff is entitled to decree of divorce from the respondent-wife. The third, as to whether the plaintiff and his family members demanded a car in dowry for which he has treated her with cruelty and the fourth regarding the relief to which the plaintiff was entitled.
8. The plaintiff examined himself as PW-1 and Shri Shyam Kumar Mishra as PW-2 a tenant in the house. The defendant-wife on her behalf examined herself as DW-1 and her father as DW-2. The parties produced documentary evidence including the revenue records of the properties in village Pure Mathuradas Kevai, Handia, Allahabad and village Jasvan, Pargana Kevai, Tehsil Handia, Allahabad; a certified copy of the original Will executed by Shri Ramanath Misra, son of late Indra Narain Misra (maternal grand father of the wife); a copy of the medical report of the husband Shri Prem Kumar Mishra; a photograph of Madhu Coaching Centre at 409 Nai Basti, Kydganj, Allahabad and the order passed by the High Court in Writ Petition No. 7887 of 2005. The husband has also filed the negative of the photographs and the order passed by the High Court dated 29.3.2006 in Writ Petition No. 17229 of 2006.
9. The plaintiff also filed a sale deed dated 7.10.1998 executed by his mother Smt. Sheela Mishra; the certificate of Intermediate Examination-2000 of the plaintiff-husband; the mark sheets of B.A. 1st year, IInd year and IIIrd year of the year 2001.
10. The Family Court considered the oral evidence led by the parties including the statement of the plaintiff and Shri Shyam Kumar, an independent witness, who had alleged that he was the tenant of the plaintiff-husband and had seen her behaving with cruelty with her husband. The Family Judge found from the evidence led by the parties that the husband and wife were not living together since March, 2003. The suit was filed within a month on 10.4.2003. The separation was not sufficient under Section 13 (I) (i-b), which provides for at least two years' separation for filing a suit on the ground of desertion. The Family Judge concluded that the evidence led on record does not establish that the attitude and behaviour of the respondent-wife was such which would constitute cruelty, as a ground for divorce. On issue no. 3, the Family Court found that the respondent-wife had admitted before the Counsellor of the Family Court, to whom the matter was referred and that her husband did not demand a car in dowry. He did not beat her nor is in habit of drinking. She also stated that she did not make any attempt to commit suicide and she wants to live with her husband. In the counselling report (paper 47-Ga) it was reported that he did not demand dowry. In the cross-examination, however, she stated that she had made a statement to the counsellor fearing her husband Shri Prem Kumar Mishra. The Family Judge found that the contradiction in her statement on oath and before the counsellor has to be read in her favour inasmuch as the statement in the Court has to be believed in comparison with the statement given in the proceedings of counselling. There was no fundamental error or any contradiction in the statements of respondent-wife and her father, which may give any benefits to the plaintiff-husband. On these findings, the suit was dismissed.
11. The First Appeal No. 707 of 2008 has been filed by Smt. Madhu Mishra against the judgment and order dated 6.12.2005 by which the Additional Principal Judge, Family Court, Allahabad had dismissed her application under Section 24 of the Hindu Marriage Act for interim maintenance of Rs. 15,000/- per month and Rs.20,000/- as cost of litigation. In her application, she had stated that her husband is serving in Merchant Navy and is earning about Rs.40,000/- per month. She has no means to maintain herself. The husband, on the other hand, submitted that she is running a coaching centre by the name of 'Madhu Coaching Centre' and has filed a photograph to establish that the 'Madhu Coaching Centre' is run by her. The Family Judge found that the respondent-wife had initially refused to accept the notices and that the order sheet shows that she had filed written statement after several adjournments. The defendant is causing delay in deciding the suit and prima facie the photographs should be believed. In the circumstances, he rejected the application for interim maintenance and for cost of proceedings in the suit.
12. Shri H.N. Shukla, learned counsel appearing for the appellant-husband submits that the Family Judge has committed gross error of law in disbelieving the evidence on cruelty. The respondent-wife was not interested in maintaining relations with her husband. She used to treat her husband and relatives with cruelty. Shri Prem Kumar Mishra had stated in his plaint supported by oral evidence that she used to misbehave with him and his parents. She has also thrown a new born child on floor and had tried to set herself on fire by opening the valve of the gas cylinder in the kitchen.
13. Shri H.N. Shukla submits that on one occasion the respondent-wife had given a blow on the ear of the husband on which he suffered serious injuries and has become hard of hearing. He had to undergo treatment and lost an opportunity of enrolment in Merchant Navy. He submits that the Family Judge did not make any effort to allow the parties to arrive at a settlement to live separately. According to him the evidence on record was shown to establish apprehensions to the husband that it will be harmful and injurious to live with her, constituting the ground for divorce on cruelty. He submits that where the wife is not interested in maintaining the matrimonial relationship and is not willing to discharge the duties as of wife, the Court should grant divorce to allow the parties to live peacefully. He has relied upon a judgment of Supreme Court in Suman Kapur vs. Sudhir Kapur (2009) 1 SCC 422, in which after considering the entire case law including the judgment in Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511 the Supreme Court held that sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness, should be treated as a ground for divorce.
14. Shri B.N. Mishra, appearing for the respondent-wife, on the other hand, submits that the plaintiff has not been able to prove cruelty as a ground for divorce. The respondent-wife went to live with him and gave all respect to the family members. She was herself treated with cruelty for bringing insufficient dowry. The husband was unemployed. He, however, demanded a car, more money and jewelery in the dowry, which became a ground to torture her. She gave birth to a baby girl, which was sufficient proof of conjugal relationship with the husband and wife. She never misbehaved with the family members of her husband and did not try to commit suicide. The entire allegations were cooked up for the purposes of bringing more dowry and when the father of the wife was unable to meet the demands, she was thrown out of the matrimonial house. The husband has never visited her since then and has made no efforts to bring her back.
15. In Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511 the Supreme Court held that no uniform standard can be laid down in dealing with the case of mental cruelty. In Suman Kapur vs. Sudhir Kapur (supra) the Supreme Court has considered in great detail the concept of cruelty, which has not been defined in Hindu Marriage Act. Relying upon Shobha Rani v. Madhukar Reddi (1988) 1 SCC 105; V. Bhagat v. D. Bhagat (Mrs.) (1994) 1 SCC 337; Chetan Dass v. Kamla Devi (2001) 4 SCC 250; Praveen Mehta v. Inderjit Mehta (2002) 5 SCC 706; A. Jayachandra v. Aneel Kaur (2005) 2 SCC 22, Vinita Saxena v. Pankaj Pandit (2006) 3 SCC 778; and Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511, the Supreme Court held as follows:-
34. Recently, in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, this Court held;
"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. (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.(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;.
16.In Suman Kapur vs. Sudhir Kapur (2009) 1 SCC 422 the Supreme Court held in paragraphs 30 to 35 as follows:-
"30. The concept of cruelty has been dealt with in Halsbury's Laws of England [Vol.13, 4th Edition Para 1269] as under;
"269.....The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's capacity for endurance and the extent to which that capacity is known to the other spouse."
31. In Gollins V. Gollins Lord Reid stated: (All ER P.969C-D) "No one has ever attempted to give a comprehensive definition of cruelty and I do not intend to try to do so. Much must depend on the knowledge and intention of the respondent, on the nature of his (or her) conduct, and on the character and physical or mental weakness of the spouses, and probably no general statement is equally applicable in all cases except the requirement that the party seeking relief must show actual or probable injury to life, limb or health".
32. Lord Pearce also made similar observations: (All ER p.992 B-C);
"....It is impossible to give a comprehensive definition of cruelty, but when reprehensible conduct or departure from normal standards of conjugal kindness causes injury to health or an apprehension of it, is, I think, cruelty if a reasonable person, after taking due account of the temperament and all the other particular circumstances would considered that the conduct complained of is such that this spouse should not be called on to endure it."
33. The test of cruelty has been laid down by this court in the leading case of N.G. Dastane v. S. Dastane, (1975) 2 SCC 326 thus:
"......The enquiry therefore has to be whether the conduct charges 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 injurious for him to live with the respondent...."
34. In Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan & Anr., (1981) 4 SCC 250, this Court stated that the concept of legal cruelty changes according to the changes and advancement of social concept and standards of living. It was further stated that to establish legal cruelty, it is not necessary that physical violence should be used. Continuous cessation of marital intercourse or total indifference on the part of the husband towards marital obligations would lead to legal cruelty.
35. In Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105, this Court examined the concept of cruelty. It was observed that the term `cruelty' has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(ia) of the Act in the context of human conduct and behavior in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one spouse which adversely affects the other spouse. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of degree which is relevant. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the other spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Mens rea is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment."
17. In Vishwanath Agrawal v. Sarla Vishwanath Agrawal (2012) 7 SCC 288 the Supreme Court held that the expression "cruelty" has an inseparable nexus with human conduct or human behaviour. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that are conditioned by their social status. The facts and circumstances are to be assessed emerging from the evidence on record and thereafter, a fair inference has to be drawn whether the petitioner in the divorce petition has been subjected to mental cruelty due to the conduct of the other.
18. In the present case, it is admitted that after marriage on 11.5.1995 the respondent-wife came to live with the husband after the ceremonies of Gauna on 14.2.2000. She gave birth to a baby girl. It is admitted that the plaintiff-husband is unemployed. He had appeared in the selections for appointment in Merchant Navy but did not succeed as he failed to clear the medical test. He appears to have some defect in hearing for which unfortunately he blames his wife but has not given any date or details of the incident in which any injury may have been caused to him on account of any fight or scuffle with her. It appears that having failed to pass medical test he is putting the blame on his wife. The appellant-husband did not state or give details of the treatment undergone by him at Allahabad after receiving any injury.
19. The evidence on record clearly establishes that having failed to secure the employment the appellant-husband dependent on his family started demanding dowry. The family was not happy with the amount of dowry received and specially for not getting a car in comparison to the dowry received by his cousin brother, who was also unemployed. The entire family started blaming the respondent-wife and treated her with cruelty. They blamed her for opening the valve of the gas stove in the kitchen, and on which they called her father and made her to leave the matrimonial house. Since thereafter no effort has been made by the appellant-husband or his family to bring her back and to allow them to resume relationship as husband and wife.
20. It is alleged that the cruelty by the wife in the behaviour increased after the birth of the child. She was taken to the doctor where she misbehaved and that thereafter a few days before Holi, she tried to commit suicide by opening the valve of the gas. The trial court has found that there was no independent witness of these allegations. The tenant, who was allegedly living in the same premises, had no occasion to hire the house on rent as his family was living hardly 3-5 kms away. His testimony was rightly disbelieved by the trial court.
21. The evidence shows that the respondent-wife as a young married lady confined to the conservative family in which the husband was unemployed, was subjected to persistent demand of dowry including a car. The alleged trouble admittedly started when she wanted to visit her parent's house. The denial to meet with her parents may have annoyed her. Her behaviour was, however, not proved to be such which would fall within the definition of cruelty in the strata and milieu of the society in which the couple was living.
22. The unemployment of young men, who marry before they are settled, very often creates tension in the house. Where the husband is dependent on the parents, and is unable to satisfy the basic needs of the wife, she starts complaining and many a times the situation creates matrimonial disharmony which leads to filing of divorce suit. These circumstances, however, cannot be treated to be the grounds to constitute cruelty, which is sufficient for granting divorce. In such situation, the entire family, should come together to help the husband and wife and to support them, until the husband or the wife starts earning sufficient income for maintaining the family.
23. In the present case, we do not find that the Family Judge has committed any error in recording the findings that the facts and circumstances as brought out in the evidence, were not sufficient to constitute cruelty as a ground for divorce.
24. In the appeal against maintenance under Section 24 of the Hindu Marriage Act, the Family Judge committed a gross error in refusing to grant interim maintenance on the ground that the wife had filed written statement after several adjournments. The photographs showing a notice board of a coaching centre by itself could not be a ground, unless the evidence was led to hold that the respondent-wife was earning to maintain herself and her daughter. The husband did not lead sufficient evidence to establish that the wife is earning to maintain herself and her daughter. As a husband, even if he is unemployed, it is his duty to maintain his wife and his daughter. The respondent-wife, however, was not justified in claiming Rs. 15,000/- per month as there was no proof of the employment of her husband in Merchant Navy. In the circumstances, we feel appropriate to grant relief of interim maintenance of Rs.5000/- to the appellant-wife in First Appeal No. 707 of 2008 and in addition an amount of Rs.3000/- for her daughter. This amount will be paid from the date, when she made the application for grant of interim maintenance to her and for her daughter. She will also be entitled to Rs. 25,000/- as cost for defending herself before the Family Court and in the High Court.
25. The First Appeal No. 247 of 2007 is dismissed.
26. The First Appeal No. 707 of 2008 is allowed with directions to the respondent-husband to pay Rs. 5000/- per month as maintenance to defendant-wife and Rs. 3000/- as maintenance to his daughter with effect from 8.10.2004, when she filed an application under Section 24 of the Hindu Marriage Act. The office will draw a decree for execution accordingly.
Dt.04.3.2013 RKP/