Gauhati High Court
Smt. Bina Rani Banik vs Pradip Kr. Banik on 27 May, 1999
Equivalent citations: I(2001)DMC413, AIR 1999 GAUHATI 139, (2000) 2 HINDULR 82, (2000) 4 ICC 413, (2000) 1 MARRILJ 167, (2001) 2 CIVLJ 184, (2001) 1 DMC 413
ORDER J.N. Sarma, J.
1. This appeal arises out of a matrimonial proceeding. The wife is the appellant. A Suit being Title Suit (D) No. 13 of 1993 was filed before the learned District Judge at Nowgong and the learned District Judge by judgment and decree dated 7-7-1994 granted a decree of divorce.
2. I have heard Smt. K. Deka, learned Advocate for the appellant and Smt. A. Hazarika, learned Advocate for the Respondent. The parties were married on 9-7-1985 (sic). Out of this wed-lock, a child was born on 25-1-1986. But the said child died on 25-3-1987. The respondent is an employee of the Railway and he is a Junior Clerk under Railway, This application of divorce has been filed on the ground of cruelty Section 13 of the Hindu Marriage Act, 1955 provides three grounds for dissolution by a decree of divorce and Section 13(1)(ia) provides that a decree of divorce may be granted where the either party after celebration of marriage treated the petitioner with cruelty. That the Clauses (ia) and (ib) were added to Sub-section (1) where under cruelty and desertion were made grounds for obtaining divorce prior to 1976. The grounds mentioned in Clauses (ia) and (ib) were grounds only for judicial separation under Section 10 with a slight difference in wording. Thereafter they were incorporated as grounds for divorce. The object of the amendment of some of the provisions in the original Section 13 are amongst others to liberalise the provisions relating to divorce. The expression cruelty is not defined in the Act. Interpreting Section 10(1)(b), the Supreme Court observed in Dastane v. Dastane, AIR 1975 SC 1534, that it is not necessary that the cruelty must be of such a character as to give rise to a reasonable apprehension as to life and danger to limb as laid down by the English decision. The Supreme Court further observed that harm or injury to health, reputation, the working career or the like would be an important consideration to know/ascertain whether the respondent's conduct amounts to cruelty. The Courts have to see whether the petitioner proves that the respondent has treated him/her with such cruelty as to cause responsible apprehension in the mind that it will be harmful or injurious to the petitioner. This aspect of the matter was considered by the Punjab High Court in AIR 1985Pun and Har 199 (Kamlesh v. Paras Ram) and also by the Full Bench of Bombay High Court in AIR 1984 Bom 413 and the Bombay High Court laid down the taw that the cruelty contemplated under Section 13(1)(ia) of the Act neither attract the old English doctrine of danger nor the statutory limits embodied in old Section 10(1)(b). Cruelty contemplated is a conduct of such type that the petitioner cannot reasonably be expected to live with the respondent. The amendment was made on the basis of the 59th Report of the Law Commission which was prior to Dastane's case to the effect that it is sufficient to prove cruelty as a ground for divorce and leave it to the Court on the fact of each case whether the conduct amounts to cruelty. They also pointed out that even in England, the principle laid down in Russel v. Russel, (1877 AC 395) was abandoned in the Matrimonial Causes Act, 1973. After amendment as pointed above, the object was stated to be to liberalise the provisions relating to divorce . The Courts have to interpret, analyse and define what would constitute cruelty in a given case depending on many factors, such as, family status, background, customs, tradition, caste and community, up bringing, public influence prevailing in the areas etc. Cruelty should, be of the type as to usually satisfy the conscience of the Court whether the relationship between the parties deteriorated to such an extent that it has become impossible for them to live together without mental agony, torture and distress. Court should make an assessment of human nature and human affairs and the picture of domestic lives of the spouses to be surveyed as a whole before forming a Judgment of their possible future relations. Cruelty may be both mental and physical. It is in this background now, let us have a look to the matter.
3. Cruelty as ground for divorce, consists of unwarranted and unjustifiable conduct on the part of one spouse causing other spouse to endure suffering and distress, thereby destroying peace of mind and making living with such spouse unbearable, completely destroying real purpose and object to matrimony. If a person by his own conduct creates a situation, where he is reasonably expected to face some consequence, actions leading to that consequence cannot be deemed to be cruelty. Pursuing a legal remedy for the protection of the limb/body of a person cannot be cruelty, acquittal in such a case is relevant only when the Court/authority comes to a finding that it is false, frivolous, vexatious or malicious. Otherwise a person shall be deterred from pursing a legal remedy, as it is the common experience that many of prosecution and in acquittal, the rate of conviction in India being on the low side. In the case of a perfect couple (which is difficult to find) or a reasonable couple certainly it is not expected that the one shall institute a criminal prosecution against the other. But the question is whether instituting a prosecution or setting the ball in motion for prosecution per se will amount to cruelty. If such a course is absolutely not warranted or justified the answer may be in the positive, but otherwise the matter requires scrutiny to find out whether the Court is satisfied that allegation of cruelty has been brought home on that count. Applying the yardstick/ touchstone I find that in the instant case cruelty has not been established because of launching prosecution by the wife against the husband.
4. The allegation made in paragraphs 5 and 6 of the plaint are regarding the cruelty are absolutely vague and devoid of particulars. These two paragraphs are quoted below :--
5. That the respondent is a self concentrated and indifferent type of woman. Since after marriage, she maintained hostile attitude towards the brothers and mother of the petitioner and impressed upon the petitioner not to render any monetary assistance to them and severe all connections with them. As the petitioner could not agree to that, there arose discord between the respondent and the petitioner. The respondent began to behave indifferently with the petitioner and his family members.
6. That the respondent Bina Rani Banik few days thereafter with the association of some unscrupulous persons and her mother, brothers and sisters began to behave with cruelty, both mentally and physically. The petitioner tried his utmost best by persuasion to bring her to a proper way but all in vain."
5. Paragraphs 7 to 10 of the plaint are also absolutely vague in nature. Paragraphs 7, 8, and 9 are quoted below :-- .
"7. That after the death of first baby, Bina Rani without any rhyme and reason suddenly on one day, i.e. on or about 29-3-1987 morning called her brothers Bisu, Dilip, Sadhna and sisters Mina and Bably at the residence (father's house) of the petitioner. She then began to make unnecessary hullas using most objections and filthy languages against the petitioner without any reasonable and/or probable cause whatsoever. She also then went away with her above brothers and sisters taking all her belongings to her parent's house, declaring that she has severed all connections with the petitioner.
8. That on 14-4-1988 she, however, came back. After few days again began to quarrel with the petitioner for no reason whatsoever. Because of her behaviour, shouting in high volume and quarrel, the neighbours began to laugh at the petitioner. The more the petitioner tried to persuade her to behave politely and properly the more she became furious by nature. All the prestige and dignity of the petitioner went in hell because of the conduct and behaviour of the respondent unbecoming for a woman vis-a-vis house wife. However, for the sake of his own prestige, and to avoid further quarrel and complicacy the petitioner maintained quiet.
9. That the respondent never cares for the petitioner in any matter and in the sphere of day to day life. She without any information to the petitioner goes out from the quarter and remains absent some times for days together of her own wish and accord. On 20-6-1989 she gave birth to a second child named Debasi Banik. From 27-6-1980 to 25-7-1990 she was admitted in Lumding Rly. Hospital. From there she without any information went to her mother's house and stayed there for 17 days.
10, That with the passing of the days torturing and ill treating the petitioner and behaving the petitioner with cruelty, mentally and physically became a pleasure and habit for her. Lately in order to actuate her such pleasure and habit she in collaboration with some of her antisocial associates began to file false criminal cases against the petitioner and subject him to unmeasurable harassment, loss of prestige, reputation and what not. She even went up to making unholy alliance with the then O/C. and S.I. of the Lumding Police Station and one Pabitra Banik alias Pabitra Saha of Lumding to give a lesson to the petitioner and to harm his service and also to spoil his reputation. With that ill motive in view she managed a false Medical Report from Lumding State Hospital on 11-8-1990 and on the basis of the same filed an ejahar against the petitioner in the Lumding Police Station on 12-8-1990 absolutely on false allegations charging inter alia that the petitioner assaulted the respondent and the child Debasri Banik on 11-8-1990 at 5 p.m. The said F.I.R. was registered as Lumding Police Station case No. 67/90 and subsequently a GR Case No. 537/90 arose out of the said Police Station Case. The respondent in collusion with the said Pabitra Banik alias Pabitra Saha and the officers of the Lumding Police Station even went to the extent of getting the petitioner illegally arrested in the said false case on 12-8-1990 and detained in custody. The petitioner in the said turn was in jail hajot (sic) up to 27-8-1990 A.N. On 27-8-1990 A.N. he was released on bail of Rs. 3000.00 by the learned SDJM, Hojai, Sankardev Nagar, dist. Nagar, Assam. In getting the petitioner released on bail efforts were contributed by his friends and paternal relations for all these days -- Neither the respondent nor any of her members of her father came forward to help the petitioner in the matter. Rather showed their joice in succeeding to put the petitioner behind the Bar. Because of this detention in the jail hajot for 15 days the petitioner was also placed suspension from the service with effect from 12-8-1990 to 5-9-1990 by the Railway Authority. The petitioner by this unwarranted humiliation afflicted by the respondent, became completely frustrated and disheartened. Besides being black spotted in his service he also lost all his prestige, reputation and what not in the eyes of the society. He practically became a man of laughter before all concerned.
6. Paragraphs 12 and 13 are also regarding filing of Criminal case. In paragraph 4 of the Written Statement it has been stated as follows :--
"4. That the true facts are as follows :--
That the respondent was married by the petitioner about 9 years ago but after about 2 months the petitioner tortured without any rhyme and reason. The respondent as a bride brought gold ornaments and other Sridhan worth Rs. 50,000/-(Rupees fifty thousand). But the petitioner took away the ornaments from the respondent and uptil now has kept them with his mother. The petitioner every now and then began to demand dowry and as the respondent expressed inability, so she was bestowed with kicks, blows and there was attempt to murder her. The respondent being tired of bearing the burden brought the Criminal cases to give a stop to the violent behaviours of the petitioner.
It was not a luxury on her part to take the help of Court without any reason. Therefore, the Criminal Court ordered for Rs. 175.00 as maintenance to this respondent yet the petitioner defaulted in payment to the tune of Rs. 4,000/-. The petitioner has brought another suit for Rs. 50,000/- and the M.S. 11/93 is still pending in the Court of A.D.J., Nagaon.
This respondent did not ever ill-behave the petitioner and she gave birth to two girls and had she been not an obedient wife certainly the petitioner would have decided to get divorce ever earlier. At present the petitioner had been keeping a 'Mistress' and he is not interested with the respondent. The respondent still occupying the railway quarter attached to the petitioner. Had she been unfaithful she could have easily moved to her parents house. The respondent did never mishare (sic) the petitioner nor on her own accord, did not go to her parents house after the birth of the second girl in the hospital. The objectives and the attributes applied to this respondent in para 11 of the plaint were rather suitably applicable to the petitioner. The brother and mother of the respondent did never interfere in the affairs or family life of the petitioner. The child i.e. the girl Debashree Banik aged 5 years is along with this respondent and the petitioner did never spent a paise or offered a cloth to this daughter. This reveals the real character of the petitioner."
7. Following are the witnesses. PW 1 Pradip Kr. Banik, the petitioner DW 1 Smt. Bina Rani Banik, the respondent DW 2 is Anita Rani Das. DW 3 is Parul Rani Banik, the mother of the respondent. The F.I.R. which was lodged by the respondent i.e. Exhibit 1 is quoted below :--
'Ext. 1.
Copy of ejahar filed by Smt. Bina Rani Banik dated 12-8 1990 in connection with Lumding P.S. Case No. 67/90 under Section 438(a), I.P.C.
St. v. Pradip Banik.
First information Report. First information of a cognizable crime reported under Section 154, Criminal Procedure Code, Police Station = Lumding, Sub-Division = Hojai, District = Nagaon Case No. = 67/90. Date of hour of occurrence on = 11-8-90 at5 p.m. Date of hour when reported = 12-8-90 at 2 p.m. Place of occurrence and distance and direction from Police Station = South Hill Colony, Rly. Q. No. 747. Mouza = Lumding, About 2 K. M. South Date of despatch from Police Station = 13-8-90.
1. Name and residence of informant and Complaint = Smt. Bina Rani Banik, wife of Sri Pradip Kr. Banik of South Hill Colony, Q. No. 747. P. S. -Lumding
2. Name and residence of accused = 1. Sri Pradip Kr. Banik, son of Late Hari Das of South Hill District-Nagaon.
3. Brief description of offence with section and of property carried, if any.
= u/S. 498(A) 1PC. Husband of a woman subjecting her to cruelty.
4. Steps taken regarding investigation, explanation of delay in recording information. 5.
Results of the case = No delay.= S. I. & H. to in-vestigate please.
Sd/- Chandra Kt. Das, Inspector of Police, O/C. Lumding P. S., Nagaon, Assam. 12-8 90.
First information to be recorded below : The written report of the Complainant is re-ceived at the Police Station is treated as F.I.R. which is enclosed herewith.
Sd/- Chandra Kt. Das, Inspector of Police, O/C. Lumding P. S., Nagaon, Assam. 12-8 90."
8. This F.I.R. does not show any ill intention. The other case was on the allegation that the husband and the mother of the husband committed criminal breach of trust in respect of Stridhan (Ornaments) entrusted to the husband after her marriage with Pradip Kumar Banik. In both the cases no doubt the husband was acquitted. The other case is under Section 125, Cr.P.C. for maintenance.
9. Regarding cruelty let us have a look at the deposition of PW 1. PW 1 deposed, inter alia as follows :--
"Defendant's behaviour to my mother, brother and me was cruel and rude. Her behaviour was bad since after marriage." This statement does not establish any cruelty. "She filed a false criminal case against me in the Lumding Police Station. The police arrested me. I was detained in jail for 14/15 days" (already I have quoted the ejahar). The ejahar will show that it was simply an information to the police and if he was detained in jail for 14/15 days, the appellant/wife cannot be responsible for it. Filing of a case under Section 125 cannot be deemed to be an act of cruelty.
10. Regarding the next case under Section 406, IPC the appellant/wife had to file it as it is her case that her ornaments were taken away by the accused.
11. The next instance of cruelty as deposed by the petitioner was that he was also arrested in the case under Section 125, Cr.P.C. This was at the behest of the Court as the husband did not pay the maintenance to the wife. This cannot be an act or cruelty on the part of the wife.
12. All the things detailed above cannot be deemed to be acts of cruelty as the appellant was compelled to resort to these things to protect herself. The husband wants to rely on Exhibits -18 and 19, where the lady has been described as the wife of one Pabitra Kumar Banik. That itself is a mistake and that medical report is quoted below :--
"Medical Report.
On receipt of requisition form O/C Lumding date 11-8-1990 at 7-45 p.m. I have examined Smt. Bina Rani Banik w/o Sri Pabitra Kumar Banik, South Hill Colony. Q. No. 747 (A) and found no external injury on her person. But there is definite sign of physical assault like form hives tenderness hands."
That report itself will show that the wife was physically assaulted. In Exhibit 19 she has been described as the wife of one Prabin Kumar Banik. That also is mistake as the first line of the deposition states as follows :--
"The accused is my husband" and the husband as mentioned in the case is Pradip Kumar Banik. So none of these cases on which reliance has been placed by the learned District Judge can be said to be act of cruelty. Nowhere it has been found that the wife filed false criminal cases. If the husband was arrested, it was his own fault and own making. If a person is pushed to wall, he/she has a right to resist.
13. That being the position, the finding of the learned Judge in Issue No. 3 shall stand set aside and quashed. I do not find that the plea of cruelty has been established in this case. Accordingly this appeal is allowed. The Judgment and decree passed by the learned District Judge shall stand set aside and quashed.
14. Before I part with the record I again hope and trust that the parties will sort out the matter and shall lead a harmonious conjugal life, if not for themselves, at least for their own daughter who is like a flower. I say this because this small girl appeared in my chamber in connection with the attempt for reconciliation of the parties
15. I leave the parties to bear their own costs.