Himachal Pradesh High Court
Navneet Kumar vs Meena Kumari on 19 October, 2001
Equivalent citations: AIR2002HP16
Author: Arun Kumar Goel
Bench: Arun Kumar Goel
JUDGMENT Arun Kumar Goel, J.
1. Appellant is aggrieved by the decree dated 2-5-2000, passed by learned Additional District Judge (1). Kangra at Dharamshala, H.P. By means of impugned decree marriage between the parties has been dissolved. Respondent-wife filed a petition for dissolution of marriage by a decree of divorce under Section 13 (1) (i-a) of the Hindu Marriage Act, 1955. hereafter referred to as the 'Act'.
2. Admitted case of the parties is that they were married as per Hindu rites and customs on 18-10-1988 at Village Nehrian. Tehsil Amb District Una. They have one male issue from this wedlock who was born on 17-4-1990. According to the wife this child was taken away right from the date of his birth by the husband and his parents and since then he is residing with them only. Wife further alleged that the marriage was solemnised in hurry and it was not possible either for her or for her parents to know the antecedents of her husband. It was after marriage they came to know that he is a drug addict as also consumes alcohol. Further averments made in this behalf are that the husband would remain openly under continued state of intoxication and was also found taking drugs at times. He would also inject drug through intra muscular process to be under the influence thereof. Appellant-husband was also stated to be claiming dowry. According to wife, her husband pressurised her to bring money from her parents and in fact she had brought approximately Rs. 70,000/- Rs. 80,000/-. Money was handed over to the respondent. Despite this, husband was not at all satisfied. She was being maltreated as well as beaten up. Money as aforesaid was being demanded for the purpose of car by the husband. Maltreatment and constant beating on the part of the husband was a continuing process.
3. Misery of the wife did not come to an end here only. According to her on one occasion her father-in-law took her to Shimla for getting her employed. They stayed in the house of their relative. There at night time her father-in-law tried to molest her. In that situation she ran from the house at night time and thus saved herself. According to her though the marriage was solemnised in District Una. but because the parties last resided within the Jurisdiction of Courts of Kangra District at Dharamshala therefore petition was being filed at Dharamshala.
4. A divorce deed and an agreement was also entered into between the parties. According to wife, in terms of both these documents, the marriage between the parties stood dissolved by way of customary divorce and they were free to marry any one. Since the husband did not acknowledge the factum of divorce, therefore she was forced to file this petition for dissolution of marriage by a decree of divorce on the ground of cruelty.
5. All these pleas urged in the petition filed by his wife, have been controverted by the husband. Per him neither he demanded any dowry nor the petitioner brought Rs. 70,000/- or Rs. 80,000/- from her parents for the purchase of car by him as alleged. Rs. 40,000/- was received by him which was black money meant for being converted into white money. For that purpose whatever was done it was at the instance of his father-in-law that a sum of Rs. 40,000/- was deposited in cash through wife and later thereafter husband claimed that draft was sent by his father-in-law. Plea of continued harassment etc. as well as an attempt of sexual abuse on the part of his father was also denied and he prayed for the dismissal of the petition. It is averred that the Petitioner left her matrimonial house without any Justifiable cause. So far divorce deed and agreement were concerned, both were got prepared as a joke. Marriage between the parties is subsisting. According to him after the execution of the aforesaid documents, the wife lived with him, as such, these documents are meaningless. Allegation of husband being addicted to drugs and alcohol were specifically denied. Replication was filed on behalf of the wife to the aforesaid written statement of the husband allegations made in the reply which were contrary to the averments of the divorce petition were denied and in replication thereto contents of the petition were reaffirmed.
On the aforesaid pleadings, parties went to trial on the following issues :
1. Whether the respondent is maltreating the petitioner as such, is guilty of cruelty as alleged? OPP
2. Whether the respondent has deserted the petitioner and is guilty of desertion as alleged? OPP
3. Relief.
Parties have produced oral as well as documentary evidence. Trial Court after conclusion of the case and after examining the whole record has dissolved the marriage between the parties by a decree of divorce. Hence this appeal.
6. We have heard learned counsel for the parties and also examined the records.
7. Shri Ajay Sharma, learned counsel for the husband-appellant made two fold prayer it is not a case of cruelty as urged by the wife and the ground on which the marriage has been dissolved is not one of the grounds available to the wife under the Act. He referred to the findings recorded by the learned Court below that the marriage has Irretrievably broken down between the parties. Findings on Issue No. 1 were recorded in favour of the wife and against the husband whereas under Issue No. 2 it was held that there is no evidence on it and in fact parties were living separately by mutual arrangement on the basis of divorce deed having been executed between them on 27-10-1995.
8. All these pleas have been controverted by Ms. Rama Mehta, learned counsel for the respondent-wife, who stated that in the face of the peculiar circumstances and background of this case, for all purposes marriage between the parties is dead emotionally, socially and otherwise. She further stated that ground of cruelty is clearly made out from the circumstances of this case and according to her no exception can be taken to the decree passed by the trial Court which needs to be upheld. She fairly stated that no doubt irretrievable break down of marriage is no ground for passing of said decree, still If on the basis of other circumstances, a case for the grant of relief is made in between the spouses, then irretrievable break down can always be looked Into as an additional reason for the grant of such relief.
9. Regarding divorce deed and agreement dated 27-10-1995 it may be noted that husband admits his signatures on the divorce deed as Ex. RW1/C and RW1/Z and RW1/ X. Wife admits her signatures as Ex. PW1/ A and Ex.PWl/B. Similarly Rakesh Kumar one of the marginal witness has also admitted his signatures as Ex. PW3/A. Further on the agreement parties admitted their signatures, i.e. of wife as Ex, PW1/C, of husband as Ex.RW1/Y and by witness Rakesh Kumar as Ex. PW3/B.
10. So far cruelty is concerned, it is not defined under the Hindu Marriage Act and rightly so. Different facts may constitute cruelty in different circumstances and situations. Therefore, the question of cruelty has to be determined in the facts and circumstances of each case depending upon the nature of evidence, social environment in which the parties are residing as well as starta to which the parties belong.
11. Term cruelty has been subject matter of judicial derisions since long. Before adverting to the evidence, we think it proper to deal with the matter relating to what constitutes cruelty in law.
12. In case Dr. N.G. Dastane v. Mrs. S. Dastane, AIR 1975 SC 1534 what was held by the Supreme Court and is relevant for the present case was as under :
"32..... The Court has to deal not with an ideal husband and an ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or a near-ideal one will probably have no occasion to go to a matrimonial Court for, even if they may not be able to drown their differences, their ideal attitudes may help them overlook or gloss over mutual faults and failures. As said by Lord Reid in his speech in Gollins v. Gollins, (1963) 2 All ER 966:
"In matrimonial cases we are not concerned with the reasonable man, as we are in cases of negligence, We are dealing with this man and this woman and the fewer a prior assumptions we make about them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people."
13. In case Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121 while dealing with a case of demand of down wherein the petition of the wife had been dismissed when dowry was demanded by the husband what was observed in the ease was as under :
"4. Section 13 (1) (i-a) uses the words "treated the petitioner with cruelty". The word "cruelty" has not been defined. Indeed it could not have been defined. It has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem to determine it. It is a question of fact and degree. If it is mental the problem present difficulty. First. the enquiry must, begin as to the nature of the cruel treatment. Second, the impact of such treatment in the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it 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.
5. It will be necessary to bear in mind that there has been marked change in the life around us. in matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case, The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We the Judges and Lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners.
It would be also better if we less depend upon precedents. Because as Lord Denning said in Sheldon v. Sheldon, (1966) 2 All ER 257 (259) "the categories of cruelty are not closed." Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful/realm of cruelty.
9. A new dimension has been given to the concept of cruelty. Explanation to Section 498 A provides that any wilful conduct which is of such a nature as is likely to drive a woman to commit suicide would constitute cruelty. Such wilful conduct which is likely to cause grave injury or danger to life, limb or health (whether mental or physical of the woman) would also amount to cruelty. Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security would also constitute cruelty.
10. We are. however, not concerned with criminal offence either under the Dowry Prohibition Act or under the Indian Penal Code. We are concerned with a matrimonial conduct which constitutes cruelty as a ground for dissolution of marriage. Such cruelty if not admitted requires to be proved on the preponderance of probabilities as in civil cases and not beyond a reasonable doubt as in criminal cases. This Court has not accepted the test of proof beyond a reasonable doubt. As said by Chandrachud, J. in Dastane case, (AIR 1975 SC 1534) (supra).
15. This is not a case where the husband requested his wife to give some money for his personal expenses. The High Court appears to have mis-understood the case. It has evidently proceeded on a wrong basis. It proceeded on the ground that the husband wanted some money from his wife for his personal expenses. If the demand was only of such nature we would have thrown this appeal away. The wife must extend all help to husband and so too the husband to wife. They are partners in life. They must equally share happiness and sorrow. They must help each other. One cannot take pleasure at the cost of the other. But the case on hand is not of a failure on that front. It has been admitted by the husband himself in his letter dated August 28, 1983 addressed to the wife that his parents demanded dowry. But he wrote to the wife that there was nothing wrong in that demand of his parents. This is indeed curious. He would not have stated so unless he was party to the demand. The wife has stated in her evidence that there were repeated demands of money from mother-in-law. Her evidence cannot be brushed aside on the ground that she has not examined her father. It was not the case of the wife that the dowry was demanded directly from her father. The evidence of the father was therefore not material. It is also not proper to discredit the wife as hypersensitive or prone to exaggeration. That would be Judging the wife by our style of manners and our standard of life. That we cannot apply. We must try to understand her feelings and then search for the nugget of truth in the entire evidence.
18. Bearing in mind the proper approach to matrimonial offence, we are satisfied that the facts and circumstances brought out by the appellant in this case do justify an inference that there was demand for dowry. The demand for dowry is prohibited under law. That by itself is bad enough. That, in our opinion, amounts to cruelty entitling the wife to get a decree for dissolution of marriage."
Reliance was again placed on the case of Dr. N.G. Dastane. (supra).
14. In Chanderkala Trlvedi (Smt.) v. Dr. S.P. Trivedi, (1993) 4 SCC 232. Supreme Court on an appeal of the wife against; whom a decree for divorce had been passed by the High Court on the ground of cruelty, granted leave in the following terms :
"Special leave is granted as prima facie it appears that there are some points of law arising in the matter which may deserve consideration. We must, however, express that it is with some regret that we are granting leave in this matter because it appears to us that the marriage between the parties is. for practical purposes, dead. The only child of the marriage is a daughter who is also married and settled. The enforced continuity of the marriage will only mean that the parties will spend more years in bitterness against each other. The husband is in a position to provide reasonable maintenance or permanent alimony. We can only hope by the time the appeal reaches hearing the parties will be in a more reasonable frame of mind and arrive at some resolution of their problems which will be mutually acceptable to them."
One of the circumstance taken into account was as under :
"2..... Whether the allegation of the husband that she was in the habit of associating with young boys and the findings recorded by three Courts are correct or not but what is certain is that once such allegations are made by the husband and wife as have been made in this case then it is obvious that the marriage of the two cannot in any circumstances be continued any further. The marriage appears to be practically dead as from cruelty alleged by the husband it has turned out to be at least intimacy of the husband with a lady doctor and unbecoming conduct of a Hindu wife."
15. In V. Bhagat v. D. Bhagat (Mrs.).
(1994) 1 SCC 337 : (AIR 1994 SC 710), the Supreme Court allowed the divorce. in the circumstances of this case, when it was felt by the Court that the marriage had irretrievably broken down this fact appears to have been taken as an additional circumstance keeping in view the over all facts while coming to the conclusion that matrimonial cruelty under Section 13 (l)(i-a) of the Act 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.
16. In Romesh Chanderv. Savitri (Smt.), (1995) 2 SCC 7 : (AIR 1995 SC 851) Supreme Court in exercise of powers vested in it under Article 142 of the Constitution of India dissolved the marriage between the parties. However, irretrievable break down was considered to be a circumstance for exercise of such power despite the fact that this ground being not on the statute book under the Hindu Marriage Act as it stands.
17. In Smt. Sneh Prabha v. Ravinder Kumar. AIR 1995 SC2170 after having come to the conclusion that the marriage has irretrievably broken down and there being no chance of the parties living together. Supreme Court granted divorce with immediate effect, of course, subject to conditions as contained in the said Judgment.
These are some of the illustrative cases where the Supreme Court has considered that the matrimonial bond between the parties was emotionally dead and in its opinion had broken down irretrievably. As such after taking stock of the situation in each case including the circumstances whereunder the marriage had irretrievably broken down, itself allowed the divorce.
18. Now we shall deal with the other line of decisions.
19. In J.L. Nanda v. Smt. Veena, AIR 1988 SC 407 It was observed that spouses having differences in earlier period of their marriage did not have problem after the birth of their son. When husband sought divorce on the ground of cruelty, it was declined. Court also observed that temperament of the spouses being not conducive to each other resulting in petty quarrels, was not a ground though might have resulted in physical and mental ailments.
20. In Harjit Kaur v. Jaswant Singh. (1996) 2 Serv LJ 1049. a learned single Judge of Punjab and Haryana High Court set aside the decree of divorce passed by the trial Court and dismissed the petition of the husband for the grant of such relief as according to her minor disputes do arise between the couple and divorce could only be allowed if behaviour of one of them becomes impossible for the other to live harmoniously with the first spouse in the matrimonial home.
21. In Sudhir Singhal v. Ms. Neeta Singhal. AIR 2001 Delhi 116. a learned Judge of that Court held that irretrievable break down is not a ground for dissolution of marriage recognised by law, therefore, High Court was not empowered to grant such decree.
22. Now, we shall refer to the evidence examined by the parties in support of their respective pleas and then test the impugned decree on its basis as well as on the touch stone of the decisions of the Courts supra.
23. Wife has appeared as PW1 and has pledged her oath. According to her, adequate inquiries could not be made about the husband by her parents. She learnt after her marriage that her husband always remained in an intoxicated state. He was asking the wife to bring money for the purchase of car and then Rs. 40,000/- was given by her and in addition to this remaining amount was made available in cash which was to the extent of Rs. 70,000/- or Rs. 80.000/-. This money was arranged by her from her father. According to her, her husband used to get letters written from her to his friends which contained unwanted things regarding her character and thereafter would keep those letters with him. She was being administered beatings by him. The husband's parents were also causing harassment to her. She gave birth to a son in hospital at Una, who was removed from there by her husband. She also stated regarding an attempt having been made by her father-in-law to sexually abuse her when she was brought to Shimla and both of them stayed with a relation.
24. She has also stated regarding the execution of divorce deed mark A and agreement mark B. As already noted, she has proved her signatures on both these documents. These documents were executed in the presence of marginal witnesses. After having admitted the contents of both these documents to be correct, she and her husband signed these two documents. She was peacefully living at her parental house, despite there being customary divorce, still her husband was coming to her house with a view to take her. Since her husband was not admitting and acknowledging the factum of divorce in terms of the aforesaid divorce deed, therefore, necessity arose for filing the proceedings. According to her. she hates her husband because of maltreatment and she does not want to go with him in her cross-examination she has stated that the proposal of divorce was that of her husband. She admits having known Navneet Kumar --appellant prior to marriage, because she was working in Una hospital, whereas her husband was having a chemist's shop nearby. Earlier it was a love marriage and thereafter it was arranged. She was confronted with photostat copies of writings marks X, Y and Z which were objected to for want of original. She has denied the suggestion that draft of Rs. 40,000/- was given to her husband and this money having been paid to her husband by her father to avoid Income-tax. Otherwise nothing has come in her cross-examination so as to disbelieve her.
25. PW2 is Shankar Dass father of PW1. He has supported the case of the petitioner so far respondent being an addict to getting injection and taking some medicine. Per him husband used to beg for money. Once a sum of Rs. 10.000/-, again Rs. 40,000/- by way of demand draft was given and in all a sum of Rs. 80,000/- was paid by him since December. Draft of Rs. 40,000/- was given in the year 1996 because his daughter and son-in-law were to purchase a car. He has denied the suggestion that Rs. 40,000/- was paid as a device to avoid Income-tax.
26. PW3 is Rakesh Kumar. He is a witness to both the documents Mark A and B, divorce deed and agreement respectively. Both these documents were scribed at the instance of the husband and his father in his presence. These documents were read over to the parties and it was thereafter that they appended their signatures. In reply to last question, he has stated that divorce did not take place between the parties and divorce deed was written as a Joke.
27. Husband has appeared as RW-1. According to him, he is neither drug addict nor remained Intoxicated, much less being alcoholic. He further stated that he never divorced his wife. These writings were executed as a joke. Regarding payment of Rs. 40,000/- he stated that it was his father-in-law a money given to him to evade Income-tax. He never beat his wife nor his parents maltreated the wife. He admitted his signatures as observed hereinabove on Mark A and B. he admits having executed both these documents of his own free-will and in the presence of Pawan Kumar marginal witness.
28. RW-2 is Surlnder Kumar. Per him he is working as a driver with the husband. Both husband and wife are living together. He had taken the wife in the vehicle to the place of posting of husband's father as well as to village Kotla. Relations between both of them were all right. Husband had gone to the place where wife was posted but returned after sometime. Wife was also visiting the house of her husband at Una. He also stated that the husband was not addicted to alcohol and that the husband did not maltreat his wife. According to this witness even on the day of his statement (27-12-1999) they were living as husband and wife. This is the entire oral evidence.
29. Documentary evidence consists of Talaknama and an agreement. A perusal of Talaknama mark A (signatures whereon are admitted by the parties as well as witness Rakesh Kumar PW-31, suggests that the parties had dissolved the matrimonial bond with the execution of this document.
30. Similar is the position regarding the agreement mark B.
31. Challenging both these documents as well as the evidence examined by the wife, learned counsel for the husband stated that no ground much less of cruelty is made out. in the circumstances of this case (mark A execution whereof was admitted by both the parties), it was never Intended to dissolve the marriage. Another argument by Mr. Ajay Sharnia was that this document has not been proved according to law having not been exhibited under Order 13 Rule 4 of the CPC. As such it is nothing but a waste paper. According to him, merely because signatures have been admitted, the contents of this document cannot be said to have been proved,
32. We feel that this argument is without any basis either in law or in fact. Reason being that husband admits having executed the divorce deed while appearing as a witness as well as in his pleadings. He; admitted his signatures and also further; staled that it was signed by both the parties (i.e. himself as well as wife) in the presence of witnesses. What his explanation is? That it was by way of Joke.
33. It is not his case that he is not a signatory Co it or it was not executed by him or that it was forged in either of the situations probably wife might have been called upon to prove the same. Once he admitted the documents Mark A and B having been executed in his pleadings followed by his statement and admission of signatures thereon, it was for him to have removed all doubts with a view to exclude of those being taken into account as legal evidence. We feel that these are relevant documents particularly when the husband knew the contems of both documents. And also does not deny their execution. As such the wife was not required to prove the execution of either mark A or B in the face of admission of execution of these documents by the husband and also having admitted to have signed these documents when he appeared as a witness in Court. Reference in this behalf can be made to case Dattatraya v. Rangnath Gopalrao Kawathekar (dead) by his legal representatives, AIR 1971 SC 2548.
34. So far excluding mark A and B from consideration on account of those not. being exhibited is concerned , this argument is again fallacious and without any merit. Putting an exhibit on a document is by itself not a magic wand that will prove the document. A document is required to be proved in accordance with law. There are different modes of proving it. Some such illustrative modes are, when either a party admits It. or when someone acquainted with the writings signatures is made to prove both during the course of the oral evidence when the executant is not available, or a statute raises a presumption in favour of a document. At the risk of repetition we may notice that the husband admitted having executed both the documents though claimed those to be a joke. He gives an explanation, which we feel, is not acceptable besides being purely an afterthought.
35. Demand of dowry in the circumstances of this case, and husband having admittedly received, money from his father-in-law is a further ground for uphholdirig the decree of the trial Court. Plea to the contrary regarding receipt by the husband is hereby rejected.
36. in this behalf we are of the view that in the set up of Indian society explanation of the husband that the divorce deed and agreement mark A and B were executed as a joke cannot be accepted. There cannot be a cruel Joke than this particularly when a Hindu marriage which is considered to be a sacrament, was aimed to be broken as a joke. On examination of Mark A and B, we find that all requirements for dissolving the marriage are contained in it. So much so that the husband had allowed right of visitation and meeting their only son to the wife. We see no reason to accept the plea of husband that both these documents were executed as a joke and/or both of them lived together as husband and wife after entering into those. Evidence, of the wife in the circumstances of this case proved Issue No. 1 and the findings recorded by the trial Court in that behalf deserve to be upheld.
37. So far plea that irretriveable break down is not ground for the dissolution of a marriage is concerned, we may observe that it does not find place in the statute book, still the Supreme Court has taken it as an additional reason where a ground in law was made out, as is evident from the decisions (supra).
38. We may further add that when in a case, like the present one. Court is satisfied that the bond is emotionally dead, then looking to the larger public interest as well as welfare and well being of the parties, coupled with legal grounds existing in the present case, the Court will not hesitate to dissolve the marriage.
39. Examining the present case on the basis of above referred evidence as well as touch stone of the legal position as explained in the decisions referred to hereinabove, we find no reason to take a view different from the one that has been taken by the trial Court. We are satisfied that no illegality has been committed by the trial Court in passing the Impugned judgment and decree dissolving the marriage between the parties which needs to be upheld.
40. No other point is urged.
41. in view of the aforesaid discussion, there is no merit in this appeal, which is accordingly dismissed. Costs on the parties.
C.M.P. No. 456 of 200042. in view of the disposal of the main appeal. exparte interim order passed on 20-6-2000 is hereby vacated.