Chattisgarh High Court
Smt. Geeta Manikpuri vs Kamlesh Manikpuri on 29 September, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FAM No. 197 of 2019
Kamlesh Manikpuri S/o Aarti Das Manikpuri Aged About 39 Years R/o
House No. Mig 1/33, Housing Board Colony, Khamtarai, District
Bilaspur Chhattisgarh., --- Appellant
Versus
Smt. Geeta Manikpuri W/o Kamlesh Manikpuri Aged About 36 Years
R/o Village And Post Aurai, Police Station And Tahsil Bichhiya,
District Mandala Madhya Pradesh, District : Mandla, Madhya Pradesh
---- Respondent
For the Appellant : Shri Devesh Chand Verma, Advocate with Mr. Animesh Verma, Advocate For the Respondent : Shri Rahil Arun Kochar, Advocate FA(MAT) No. 66 of 2019 Smt. Geeta Manikpuri W/o Kamlesh Manikpuri Aged About 38 Years R/o Village And Aurai, P.S. Bichhiya, District Mandla Madhya Pradesh...(Applicant), District : Mandla, Madhya Pradesh ---
Appellant Versus Kamlesh Manikpuri S/o Aarti Das Manikpuri Aged About 39 Years R/o H. No. Mig 1/33 , Housing Board Colony Khamtarai, District Bilaspur Chhattisgarh....(Respondents), District : Bilaspur, Chhattisgarh ---
Respondent For the Appellant : Shri Rahil Arun Kochar, Advocate. For the Respondent : Shri Devesh Chand Verma, Advocate with Mr. Animesh Verma, Advocate Hon'ble Shri Justice Goutam Bhaduri, Judge & Hon'ble Shri Justice Radhakishan Agrawal, Judge 2 Judgment on Board Per Goutam Bhaduri 29 .09.2022
1. These are two appeals separately filed by both husband and wife against the order dated 07.03.2019 passed by the Family Court Bilaspur in Civil Suit No.208A/2017 whereby the petition filed by the husband seeking divorce was allowed on the ground of cruelty and desertion against which the wife filed appeal whereas in respect of application filed by wife u/s 27 of the Hindu Marriage Act seeking disposal of the property presented during the time of marriage, a consolidated sum of Rs.1 lakh was granted, against which, the appeal was preferred by the husband. The husband contended in appeal that the amount of Rs..1 lakh which has been ordered under section 27 is without any evidence whereas the wife has raised the contention that the divorce granted to the husband is bad in law as also the amount of Rs.1 lakh, which has been granted u/s 27 towards the valuable articles given in marriage, is too meagre and apart from that no permanent alimony has been given.
2. Brief facts of these cases are that the marriage between the parties took place on 22.05.2002. The husband stated that after marriage, he was forced by the wife to stay separate and she never used to discharge her matrimonial obligations and when he requested to fulfill such obligations, she used to abuse and extend threat to inculpate in a false case. Because of such threat, the entire family of the husband 3 used to live in fear and eventually as expected a false report was made on 26.11.2006 by the wife, upon which, a case was registered u/s 498-A of IPC. The husband further stated that despite all possible efforts made, the wife refused to cohabit with him and has been living apart since 26.11.2006, as such, she had deserted him without any lawful cause. It is further stated that in respect of the report made under u/s 498-A the trial was conducted which eventually resulted into acquittal. So it would go to show that on false allegations, not only the husband and his family members suffered the torment of trial but also their image was damaged in Society, which would also amount to cruelty.
3. Per contra, Mr. Rahil Kochar, learned counsel appearing on behalf of wife contended that the wife was subjected to cruelty for demand of dowry and eventually when the torture aggravated, she made a report to Mahila Police Station. It is further stated that the husband has kept another lady as his wife and when the wife wanted to join his company, she was forced to get away, therefore, she could not join him. She further stated that she is ready and willing to stay with the husband. It is also stated that In a proceeding before the Family Court, an application was also filed u/s 27 of the Hindu Marriage Act and it was stated that gifts worth Rs.5,30,000/- as per the enclosed list and the particulars of the valuable articles/ goods which were presented to her during marriage were kept by the husband, therefore, the said goods may be returned.
4. In reply to such application, the husband stated that during marriage domestic gifts like cot, Almira, utensils worth 4 Rs.50,000/- were given, however, no receipt in respect of such articles were given to him and pursuant to the report made by the wife, she came along with Police and took away the entire goods which were given as gifts and he does not have any articles in his possession.
5. On the basis of the pleadings of the parties, the learned Family Court framed the issue as to whether the husband was being treated with cruelty by the wife after marriage. The answer was given in affirmative. Further in respect of the issue of desertion, the family court found that two years before filing of petition on 16.03.2017 the husband was deserted by the wife and in respect of return of goods a direction was given u/s 27 to pay a consolidated amount of Rs.1 lakh.
6. Shri Devesh Chand Verma, learned counsel assisted by Shri Animesh Verma, Advocate appearing for the husband would submit that they are not aggrieved by the decree of divorce but the order to pay an amount of Rs.1 lakhs cannot sustained. He would submit that without any finding the order has been passed. He submits that when gifts were presented jointly during marriage, under the circumstances section 27 would lie for that only. Consequently without taking into account the stand of husband about the presentation of joint gifts, such order cannot be passed, therefore, the learned family Court fell into error.
7. Per contra, learned counsel for the wife would submit that no ground of cruelty existed whereas the statement of the wife would show that the husband has kept another lady as concubine and when the wife wanted to stay with him, she 5 was forced to leave. He further submits that under the circumstances, the report was made to the police and a sum of Rs.5,30,000/- was claimed but as against such claim, only Rs.1 lakh has been awarded which too is meagre. Therefore, the judgment and decree be set aside.
8. We have heard learned counsel for the parties at length and have also perused the records.
9. The averments of the petition for divorce as also the statements would show that the husband had made the allegation that the wife never wanted to perform her matrimonial obligation and whenever she was asked to do so she used to abuse and extend threat that the family members would be inculpated in a criminal case. He further submitted that eventually on 26.11.2006, a report was made under section 498-A read with section 34 of IPC against the husband and his family members, for which, they had to face a trial and eventually the acquittal order was passed on 07.03.2009. The said order of acquittal is marked as Ex.P-1. A perusal of the said judgment would show that the learned Magistrate after evaluating the facts came to conclusion that the report made by the wife was false as there exists serious contradictions in the statement of witnesses and thus the acquittal order was passed.
10. The wife in turn in her statement maintained the stand that she was subjected to torture for demand of dowry and the report was correct. She admitted the fact that on her report dated 26.11.2006, the husband, his mother and sister were tried in an offence punishable u/s 498-A of IPC which culminated into acquittal on 07.03.2009. The wife has 6 further made a statement that the husband has remarried and kept another lady.
11. The Supreme Court in Rani Narasimha Sastry vs. Rani Suneela Rani 2019 SCC OnLine SC 1595 has observed that when a prosecution was launched against the husband on a complaint made by the wife u/s 498-A of IPC, making serious allegations in which the husband and his family members were constrained to undergo trial, which ultimately ended with acquittal, then in such a case, it cannot be accepted that no cruelty was meted out to the husband, therefore, he can make a ground for grant of decree of dissolution of marriage u/s 13(1)(i-a) of the Hindu Marriage Act.
12. Likewise, In the instant case, not only the report was made against the husband but also against the family members which led to filing of criminal case and forced them to suffer trial and it ultimately ended with acquittal. The Supreme Court in V. Bhagat v. D. Bhagat (Mrs.) (1994) 1 SCC 33 held that mental cruelty in Section 13(1)(i-a) 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 asked to put up with such conduct and continue to live 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. While arriving at such conclusion, regard 7 must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.
13. Further more, as per the statement of husband after initial report on 26.11.2006 the wife was living separately at her maternal home. The husband filed an application seeking divorce in the year 2017. During such long gap, there is nothing on record to infer that wife had ever made any effort to rejoin the company of husband. The statement of the wife would further show that she is living apart since 26.11.2006 and since then she is residing at her parental home. She further deposed that neither she filed any application to stay in the company of the husband nor any notices were exchanged and since 2006, the matrimonial relations between them were not developed. She further stated that she has not filed any appeal against the acquittal of the husband and his family members u/s 498-A of IPC.
14. In Bipinchandra Jaisinghbai Shah v Prabhavati AIR 1957 SC 176 the Supreme Court observed and discussed about "What is desertion?". Para 10 of the said dictum is quoted below for ready reference :
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(10) What is desertion? "Rayden on Divorce" which is a standard Work on the subject at p. 128 (6th Edn.) has summarised the case-law on the subject in these terms:-
"Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party".
The legal position has been admirably summarised in paras 453 and 454 at pp. 241 to 243 of Halsbury's Laws of England (3rd Edn.) Vol. 12, in the following words:-
"In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases.
Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, 'the home'. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.
The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least three years immediately preceding the presentation of the petition or where the offence appears as a cross- charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence".9
Thus the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandon the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion.' For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce; under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co- exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close. The law in England has prescribed a three year period and the Bombay Act prescribes a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decides 10 to come back to the deserted spouse by a bonafide offer of resuming the matrimonial some with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses the offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like any other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law, the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court. In this connection the following observations of Lord Goddard, C.J. in the case of Lawson v. Lawson(1) may be referred to:-
"These cases are not cases in which corroboration is required as a matter of law. It is required as a matter of precaution..............."
15. Translating the aforesaid principles in the facts situation of the present case would show that the wife is living apart since 2006 and in order to establish the act of desertion, there must be two essential conditions namely; (i) the factum of separation; and (ii) the intention to bring cohabitation permanently to an end. Whereas in respect of a deserted spouse, the absence of consent and absence of conduct giving reasonable cause to the spouse leaving the matrimonial home would be a necessary intention of desertion. The evidence recorded before the Court would show that on a complaint by the wife, the husband and his family members have faced trial which resulted into acquittal. The wife further alleges that because of the fact that another lady was kept by the husband and though she wanted to join the company of the husband he denied her. 11 But except such bald statement nothing has been shown on record to establish those facts. There was no effort on the part of wife to resume the marital ties through intervention of the Court. With the acquittal in criminal case, it cannot be presumed that she was forced to leave the matrimonial and there was reasonable cause to stay away from the Company of the husband.
16. Under these circumstances, it would lead to show that the wife has deserted the husband without any valid cause for more than two years before of the filing of the petition in family Court. Therefore, we hold that the decree of divorce granted in favour of the husband does not require any interference by this Court and to that extent the appeal filed by the wife is dismissed.
17. Now with respect to grant of amount of Rs.1 lakh, the wife in her application has given a list of goods which were presented to both of them during marriage and the value thereof was shown to be Rs.5,30,000/-. The court can pass an appropriate order for disposal of property under section 27 of the Hindu Marriage Act, 1955. In respect of the property presented at or about the time of marriage which may jointly belong to both husband and wife, the wife has stated the value of property to be Rs.5,30,000/- whereas in reply, the husband stated that the value of the property would be around Rs.50,000/-. The husband contended that the wife has taken away all the goods after she made a report to the Police on 26.11.2006. In respect of the goods, the wife has referred to Para 2 that the goods which were 12 given to her during her marriage has been shown in the list enclosed with the application u/s 27 of the Hindu Marriage Act. There is no cross examination on this point by the husband.
18. The Supreme Court in the matter of Vinod Kumar versus State of Haryana (2015) 3 SCC 138 has considered the aspect that if there is no cross examination on the factual matrix then what would be the effect. The Court reiterated the observations made in State of U.P. v. Nahar Singh (1998) 3 SCC 561 to the effect that in absence of cross examination, the evidence of witness remains unchallenged and ought to have been believed. Section 138 of the Evidence Act confers a right of cross examining the witness tendered in evidence by the opposite party. The scope of that provision is enlarged by section 146 of the Evidence Act by allowing a witness to be questioned: (1) to test his veracity, (2) to discover who he is and what is his position in life, or (3) to shake his credit by injuring his character.
19. Therefore in absence of cross examination of this witness i.e., D.W.1 the wife, we deem it appropriate to believe the submission made by her to be correct. Further more, section 27 speaks about the disposal of the property given jointly to husband and wife. If the application was filed under section 27 of the Act, 1955 then the goods which were given cannot be said to be the exclusive one of the wife and with the passage of time, when the application u/s 27 was filed in the year 2018 i.e., much after the marriage took place on 22.05.2002, the goods must have lost its value and 13 may attract huge depreciation. Under the circumstances, the finding of the learned court below that the amount of Rs.1 lakh as has been awarded appears to be justified.
20. Now coming to the grant of maintenance, the Supreme Court in Chaturbhuj Versus Sita Bai (2008) 2 SCC 316 held that the object of maintenance is to prevent the vagrancy and destitution of a deserted wife by providing her food, clothing and shelter through a speedy remedy. Therefore, following the decision of the Supreme Court and looking to the present market inflation, we deem it appropriate to grant maintenance of Rs.5000/- per month, which the wife is entitled to receive from the husband. It is accordingly directed that applicant-husband shall pay a monthly maintenance of Rs.5000/- to the wife.
21. At one stage during the course of hearing, learned counsel for the parties prayed for time to seek instructions as to whether or not any order granting maintenance was passed by the court below and file affidavit. But despite time given, no one has turned up to file affidavit. Under the circumstances, the inference can only be made.
22. In the result, the appeal filed by the wife is partly allowed and the appeal filed by the husband is dismissed. Accordingly, a decree be drawn.
Sd/- Sd/-
(Goutam Bhaduri) (Radhakishan Agrawal)
Judge Judge
Rao