Andhra HC (Pre-Telangana)
Jayakrishna Panigrahi vs Smt. Surekha Panigrahi on 4 July, 1995
Equivalent citations: AIR1996AP19, 1995(3)ALT207, I(1996)DMC335, (1995) 2 LS 297, AIR 1996 ANDHRA PRADESH 19, (1995) 2 APLJ 287, (1995) 3 CURCC 437, (1996) 1 HINDULR 289, (1996) 1 DMC 335, (1996) MARRILJ 171
Author: P. Venkatarama Reddi
Bench: P. Venkatarama Reddi
ORDER P. Venkatarami Reddy, J.
1. This appeal arises out of a petition (O.P.No. 10 of 1990) filed by the appellant herein in the Court of the Principle Subordinate Judge, Visakhapatnam, for passing a decree annulling the marriage between him and the respondent, or in the alternative to pass a decree for dissolving the marriage. The petition having been dismissed, the present appeal is filed by the appellant-husband. The appellant married the respondent on 26-11-1986 at Berhampur (Orissa State). It is the case of the appellant that he did not voluntarily agree for the marriage, and the consent was obtained by force as the parents of the appellant threatened to commit suicide if the alliance was not fixed. It is his further case that even the nuptial night ended with lot of unhappi-ness and frustration. The appellant states that he made it clear to the respondent-wife in the beginning itself that he was totally opposed to the idea of marriage with her and that he was not getting emotional reaction on seeing her. After few days, the appellant submits that he returned to Visakhapatnam, at which place he is employed in the Port Trust. In March, 1987 the respondent was brought to Visakhapatnam by her relations, and they lived for about six months, but according to the appellant, his marital life was not happy. The appellant also alleged in the petition that a neighbour of his in-laws at Berhampur came to the house of the appellant some time in July, 1987, abused him in filthy language, and thereafter she went to his office and informed one and all that the appellant was having intimacy with several girls and that he was ill-treating his wife. The appellant then submits that he tried to convince the respondent that there was no point in staying at Visakhapatnam and the marriage broke down beyond repair and it was desirable to have a divorce with mutual consent. He then states that the respondent initially agreed, and later declined to carry out the promise. He also alleges that on 18-4-1988, the respondent along with her brothers threatened him with dire consequences. According to the appel lant from April, 1988 onwards, they never lived together as husband and wife after the respondent left Visakhapatnam some time in 1988.
2. The respondent-wife in her counter admitted the fact that they last resided together in April, 1988. While denying the averments in the petition she alleged that the appellant kept a concubine and neglected her, even though she tried for re-union. She also alleged that there was a demand of dowry for purchase of a car. She further alleged that the gold, silver and steel articles and furniture worth Rs. 50.000/- were in possession of the appellant, which were given to her in her marriage.
3. In the additional counter, the respondent alleged that "the appellant has got sex relations with one M. V. Bharathi, which was lately known to the respondent, and was objected." It was further alleged that when she went to the house of the appellant at Visakhapatnam one night, she was not allowed to stay there and she saw Bharathi staying there.
4. The learned Subordinate Judge found that there was no ground to annul the marriage under S. 12 of the Hindu Marriage Act on the ground that the consent of the marriage was obtained by force. On an analysis of the evidence, the correctness of this finding has not been canvassed before us. Corning to the alternative relief sought for by the appellant under Sec. 13 of the Hindu Marriage Act seeking a decree of dissolution of marriage, except a bare statement in the concluding para towards the end of the petition that the respondent subjected him to cruelty and that she was also guilty of desertion, the appellant did not make out a case for dissolution of the marriage on the two grounds mentioned above. On the other hand, it is crystal clear from the averments in the petition itself and the undisputed facts that the appellant himself was not willing to carry on marital life with the legally wedded wife on the ostensible plea that he gave consent on account of force exerted on him. As already noticed, the lower Court found no basis for such plea. From the beginning, the appellant himself was keen on gelling a divorce on the unwholesome plea that he never agreed for the marriage. Thus, if the wife left the matrimonial home and had been residing with her parents it was only because of the attitude of the appellant, but not as a result of her own volition. With regard to cruelty, as alleged in the original pelition, no evidence worth mentioning was adduced before the Court below. Thus going by the averments in the petition, and evidence adduced by the appellant, the prayer for dissolution of marriage could not, but be rejected. But the controversy arises by reason of the stand taken by the respondent in her pleadings, which according to the appellant leads to the irresistible inference that the respondent was guilty of mental cruelty.
5. To substantiate his plea, the learned counsel for the appellant has drawn my attention to the averments in the O.S.No. 35 of 1990 filed by the respondent for restitution of conjugal rights. That O.S. was filed on 1-8-1990 in the Court of the Subordinate Judge at Berhampur. There was an ex parte decree against the appellant in that O.S. on 29-8-1992. The certified copy thereof is marked as Ex.B1, and the copy of the plaint is marked at Ex. A6. In the plaint, she stated that in April, 1988 when she went to Visakhapatnam along with her brother and other relatives to join with her husband, she found to her surprise that a lady named Bharathi was residing there. On being questioned by the respondent and her relations, the appellant replied that he wanted to live with his concubine and that the respondent could stay in the house along with that lady. It was also stated therein that the matter was brought to the notice of the Port Trust authorities. She also alleged that the respondent demanded dowry and a lakh of rupees for purchasing a car. She prayed for a decree granting restitution of conjugal rights and for interim maintenance of Rs. 2,000/- per month. A written statement was filed by the appellant contesting the petition. Ultimately, the suit was decreed ex parte after recording the evidence of the respondent, who examined herself as PW1. It may be noticed that O.S.No. 35 of 1990 was filed on 1-8-1990, i.e., after the present O.P.No. 10 of 1990 was filed on 28-10-1989.
6. The averments in the counter and additional counter have already been referred to. In the course of her examination as RW 1, the respondent persisted in her allegations against the husband regarding his illicit intimacy with another lady. She stated in the deposition as follows:
"The petitioner refused to open the door of the house and at that time one Bharathi was there in the house. Petitioner informed me that if I bring one lakh and prepared to slay as a maid servant in the house and then only I would be allowed to live in the house. My brother and his brother tried to convince him, but he refused to heed their advice. Then I went back to Berhampur. Then I filed an application under S. 9 of the Hindu Marriage Act in O.S.No. 35 of 1990."
7. The teamed Subordinate Judge found no basis to believe the version of RW 1 on this aspect of the case. The learned Judge observed that even the brother of the respondent was not examined and there was absolutely no evidence to substantiate her allegations. The lower Court observed that wild allegations were made by the respondent against the husband, which she could not substantiate by way of evidence. At the same time, he observed as follows:
"Obviously out of despair or anguish that her matrimonial home was wrecked by the circumstances, the respondent-wife might have made these allegations, or even if there is truth, as we know such facts cannot be easily established in a court of law. So in my view the mere allegations by the wife against her husband that he has illicit intimacy with another woman cannot be made a ground to grant divorce to the husband, and especially when there is absolutely no other evidence on the part of the husband to prove the ground of cruelty against the wife."
8. We do not think that the above observation made by the learned Subordinate Judge could he sustained. It cannot be denied that wild allegations imputing adulterous conduct on the part of the husband without any basis would constitute mental cruelty as observed by the Supreme Court in V. Bhagat v. D. Bhagat, 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 difficult for that party to live with the other. In other words, mental cruelty must be of such nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonaly be 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 was such as to cause injury to the health of the petitioner. While arriving at such conclusion regard 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. In Shobha Rani v. Madhukar Reddy, it was clarified that the absence of intention should not make any difference, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. It was observed that the relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment.
9. Concurring with the lower court, we are inclined to say that there was no semblance of justification in making wild allegation? against the appellant. Even in the petition filed for restitution of conjugal rights, the respondent was bent upon making allegations that the husband was living with a concubine and he was not prepared to leave her company. The comment of the learned Subordinate Judge that out of despair or anguish, she would have made such allegations does not appeal to us. The material available on record eloquently points to the fact that the respondent deliberately hurled these allegations against the husband may be, as a counter-blast to the proceedings, initiated by him for seeking divorce. The averments in the pleadings together with the deposition of the respondent have the potentiality of maligning the husband and it would undoubtedly fall within the ambit of mental cruelty.
10. The next question is whether in the absence of specific pleadings in the original petition, the ground of cruelty could be allowed to be set up on the basis of the facts pleaded by the respondent in the counter and in the petition filed in 6.S. No. 35 of 1990 which was reaffirmed in his deposition. In other words whether it is permissible to grant a decree of divorce on the ground of cruetly on the basis of the facts disclosed from the pleadings of the respondent during the pendency of the proceedings for divorce is the point. The legal position in this regard is not in doubt. In view of the judgment of the Division Bench rendered in K. Lalitha kumari v. K. Ramaprasada Rao, (1992) 1 Andh LT 631 Jagannadha Raju, J. after exhaustively reviewing the case law on the subject observed:
"Once the allegations of adultery made in the written statement are found to be false, the petitioner is entitled to relief even if the allegations are for the first time made only on the written statement. It should also be remembered that in the present case there are various allegations which are of a very scandalous nature and the appellant-wife never made any effort to substantiate those allegations."
11. Upendralal Whagray, J. in a separate but concurring judgment posed the following question:
"If such allegations in the written statement if proved, can be used to deny relief to the petitioner, can be it be said that if unproved, they can be treated as relevant material for grant of divorce?"
He answered the question as follows:
"It cannot be doubted that such an" allegation, if unproved, will furnish a cause of action to the petitioner. Is it necessary to drive him to a fresh petition, when the attempt should be to avoid multiplicity of proceedings. The need for amendment of the petition will have to be considered if such allegations if unproved amount to desertion, cruelty, which is not pleaded as a ground. If such allegations, if unproved furnish a new ground like cruelty or desertion etc., which is not pleaded, probably in an appropriate case, amendment may be necessary.
The learned Judge expressed his conclusion in the last para as follows:
"In my view, any allegations in the written statement for counter) by the respondent-spouse in a petition for divorce or judicial separation, which are not proved may be used by the petitioner-spouse as additional particulars for the grant of relief subject to any need for opportunity to the respondent, if the circumstances require and a request is made at an early stage."
12. We are in agreement with the above quoted observation. It may be noted in the present case, the ground of cruelty was in fact pleaded by the appellant though for different reasons. The respondent had the opportunity to adduce evidence with reference to the averments made in her counter and accordingly she availed of that opportunity and reiterated those allegations. There is no doubt that the respondent should reap the consequences of such conduct. We may notice that the legal position stated in the aforesaid judgment of the Division Bench cannot be said to have shaken by the judgment of the Supreme Court in Bhagat's case (supra). In that very case, the Supreme Court proceeded to examine the question whether the allegations made by the wife in her written statement and the questions put by her counsel to the petitioner in cross-examination amounted to mental cruelty and came to the conclusion that it did amount to mental cruelty. However, before parting with the case, the Supreme Court appended a note of clarification in the following terms:--
"Merely because there are allegations and counter allegations, a decree of divorce cannot follow. Nor is mere delay in disposal of the divorce proceedings by itself a ground. There must be really some extraordinary features to warrant grant of divorce on the basis of pleadings (and other admitted material) without a full trial. Irretriveable breakdown of the marriage is not a ground by itself. But while scrutinising the evidence on record to determine whether the ground (s) alleged is made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind."
13. This is a case in which the husband (appellant) by his conduct and attitude refused to lead marital life with the wife, soon after her marriage and the wife in an obvious attempt to resist the petition for divorce, went on hurling baseless allegations amounting to moral turpitude on the part of husband. Considering the facts and circumstances, we are of the view that there is no possibility of retrieving the marriage at this stage and it is a fit case to dissolve the marriage based on the conduct of wife subsequent to the filing of petition causing mental cruelty to the husband. Accordingly we pass a decree of divorce under Section 13(1)(i-a) of the Hindu Marriage Act.
14. The learned counsel for the respondent has pleaded that in case the divorce is granted, a provision for reasonable maintenance may be made by the Court under Section 25(1) of the Hindu Marriage Act. As we consider this request just and proper, we feel that despite the dissolution of marriage at the instance of husband, it is a fit case to grant maintenance to the wife. It is brought to our notice that already, the wife is getting interim maintenance of Rs. 400/ - per month pursuant to the order passed in O.S. No. 35 of 1990 by the Court at Berhampur. In arriving at the conclusion that the respondent should be granted an additional sum, inter alia, we have taken note of the fact that the conduct of the husband (appellant) is more reprehensible than that of the wife (respondent) who by virtue of making some baseless allegations in the pleadings has invited trouble on herself. The appellant having married the respondent started denouncing her from the very next day on the ground that his consent to the marriage was obtained by forte. He insisted on her staying away from cohabitation and sought the consent of the respondent for divorce. If the wife had sought for divorce on the ground of cruelly on the part of the husband, it would have been a fit case to grant the request. Unfortunately, by taking a baseless stand in the husband's application and attributing immoral conduct to the husband the respondent had to suffer a decree against herself. The overall conduct of the parties has to be taken into account in considering the question whether Section 25 of the Marriage Act should be invoked. We feel that it is eminently a fit case where we should grant maintenance, although there is no formal application before us to relieve the respondent of the hardship that she may be undergoing. Taking into consideration the income of the appellant and other relevant circumstances such as the appellants obligation to maintain his mother, we consider that an amount of Rs. 700/- per month, commencing from 1-4-1994 should be granted. The said amount shall be inclusive of the amount, if any, that may be paid by the appellant pursuant to the decree or order passed in other proceedings.
15. The C.M.A. is allowed subject to the above directions. We make no order as to costs.
16. We do not want to part with the case without referring to an astounding proposition laid down by the learned Subordinate Judge that the later decision of the Division Bench of the Bombay High Court in A. v. H, , would have an "overriding effect on the decision of our High Court". It may be that the Division Bench of this Court in Lalitkumari's case (1992 (1) Andh LT 631) referred to the decision of the Bombay High Court in N.M. Jagasha's case which was overruled by the Division Bench of Bombay High Court in the aforementioned case. That is no ground to say that the Division Bench ruling of this Court is denuded of its precedential value. The assumption that the law laid down by the Division Bench of this Court is no longer good law because at a later date, the Division Bench of another High Court had taken a different view, is opposed to the basic tenets of the law of precedent, and we express our strong disapproval of the view taken by the Subordinate Judge in this regard.
17. Order accordingly.