IN THE HIGH COURT OF ALLAHABAD
First Appeal No. 327 of 2006
Decided On: 13.01.2016
Om Prakash Pandey
Sudhir Agarwal and Rakesh Srivastava, JJ.
Citation: 2017 (124) ALR 117
1. Under challenge in this appeal under Section 19 (1) of the Family Courts Act, 1984 is the judgment and decree dated 30.5.2006 passed by Shri Ashok Kumar Saxena, Principal Judge, Family Court, Gorakhpur in Matrimonial Suit No. 73 of 1999, Dr. Om Prakash Pandey v. Smt. Jayanti, whereby and whereunder the suit for divorce filed by Dr. Om Prakash Pandey under Section 13 of the Hindu Marriage Act, 1955 (for short ‘Act’) has been decreed. Smt. Jayanti, the appellant – wife and Dr. Om Prakash Pandey, the respondent-husband were married according to Hindu rites and customs on 23.6.1985. No issue was bom from their wedlock. Since June 1993 the husband and wife are living separately. On 10.3.1999, after almost seven years after they started living separately, the respondent, a Reader in Deen Dayal Upadhyaya University, Gorakhpur filed a petition under Section 13 of the Act seeking dissolution of marriage by a decree of divorce on the ground of desertion and cruelty of the appellant.
2. According to the plaint allegations, from the beginning itself, the behaviour of the appellant was quite violent and rude. She would constantly be involved in fights with the members of the respondents family and would reply rudely to anything that the respondent would say to her. The appellant indulged in low level talks and used abusive language. The respondent continued to face the insult and the rude behaviour of the appellant in the hope that her behaviour would improve with the passage of time. Instead of improving, the appellant’s behaviour worsened over time. In order to maintain his societal respect and status, the respondent continued to bear with such behaviour of the appellant. The appellant not only continued to abuse the respondent, but also insulted him before the world. The respondent was living in a joint family and from the very beginning the appellant wanted the respondent to get separated from his family and have a separate residence. In 1993, without any rhyme or reason, the appellant packed her bags and went back to her paternal house with all her belongings and jewelry. Thereafter, the appellant did not return to the respondent’s house, despite continued attempts by the respondent to convince her to come back. It was pleaded that there had been a complete marital discord and total non-compatibility. It was alleged that the appellant had deserted the respondent for more than five years and during the said period there had been no marital or physical relationship between them. In the circumstances, it was alleged, there was no possibility of the appellant and the respondent to live as husband and wife. Alleging the aforesaid facts and circumstances, the respondent filed a petition for the dissolution of marriage on the ground of cruelty and desertion.
3. The appellant filed her written statement and refuted the allegations made in the petition. It was stated by the appellant that she was a noble and urbane lady of healthy mind. The allegation of being rude and abusive was categorically denied. The appellant denied having deserted the respondent. On the contrary, it was alleged that it was the respondent who had deserted the appellant. According to the appellant, it was the respondent who had left the appellant in her paternal house and was trying to take advantage of his own fault. It was alleged that the appellant had never been cruel to the respondent. On the contrary, it was the respondent who had been cruel to the appellant from the very beginning. The appellant, it was stated, was less educated and as such the respondent neglected her and treated her disdainfully but the appellant being an Indian woman, in order to maintain the dignity and reputation of her paternal and matrimonial house continued to tolerate the persecution of the respondent. The appellant specifically denied of having visited the appellant in the University or of having insulted him there. It was categorically stated by the appellant that in the year 1993, the respondent left the appellant at her paternal house withholding her belongings and jewelry. A number of times the appellant and her family members had requested the respondent to take her back to the matrimonial house but the respondent did not agree. In was further alleged that the respondent was having an extramarital relationship with one Smt. Asha Devi daughter of Rajkishore Pandey, who it was alleged, was the wife of Shri Surendra Nath Pandey alias Shankarshan Ramanujdas, the uncle of the respondent. It was alleged that the respondent was living with Smt. Asha Devi and her two sons, namely, Brijesh and Venkatesh and that was the reason why the respondent did not want to keep the appellant with him.
4. In the replication the respondent denied the allegations levelled against him by the appellant in her written statement and the averments made in the plaint were reiterated. It was stated that a number of times the appellant came to the University and insulted him. It was categorically stated by the respondent that Surendranath Pandey was a bachelor; there was no lady by the name of Asha Pandey; Brijesh and Venkatesh were the sons of Sri Rajendra Pandey, the younger brother of Surendranath Pandey.
5. Having failed in its attempt to bring about reconciliation between the parties, the Family Court, on the basis of the pleadings of the parties, framed the following issues:
“1. Whether the defendant subjects the plaintiff to cruelty?
2. Whether the plaintiff tortures the defendant?
3. To which relief the defendant is entitled?”
*No issue with regard to alleged desertion was insisted to be framed. The parties led their oral and documentary evidence before the Family Court. The respondent examined Dr. S.K. Sengupta as P.W. 1, himself as P.W. 2 and Yogendra Pandey as P.W. 3. Whereas, the appellant examined herself as D.W. 1 and Balendra Prasad Tripathi as D.W. 2.
6. The Family Court after assessing the rival contentions and the evidence adduced by the parties, came to the conclusion that the appellant had treated the respondent with mental cruelty and, therefore, the respondent was entitled to get a decree for dissolution of marriage. Accordingly, the suit preferred by the respondent under Section 13 of the Act was decreed. Hence this appeal.
7. Sri R.K. Chaube, learned counsel appearing for the appellant contended that the Family Court failed to appreciate that the wife was compelled to live separately on account of the conduct of the husband and as such the husband could not be permitted to take advantage of his own wrong. The learned counsel has submitted that the conduct of wife was not so grave and weighty that it could be treated to be more serious than ordinarily wear and tear of married life. According to the learned counsel for the appellant a few isolated instances over certain period do not amount to cruelty. The learned counsel has further submitted that mere failure to prove the allegation of extramarital affair would not entitle the husband to a decree of divorce.
8. Sri K.K. Mani, the learned counsel for the respondent has submitted that by making false and unfounded allegations of extramarital relationship in the written statement per se constituted mental cruelty which entitles the respondent straight away to a decree of divorce without going into any other allegation. The learned counsel has further submitted that after properly evaluating all the circumstances the Family Court has rightly decreed the suit of the respondent which calls for no interference.
9. The question to be addressed by us in the present appeal is as to whether, in the facts and circumstances of the case, a case for divorce under Section 13 (1) (i-a) of the Act has been made out.
10. Under clause (i-a) of Section 13 (1) of the Act, a marriage can be dissolved by a decree of divorce on a petition presented either by the husband or the wife on the ground that the other party has, after solemnization of the marriage, treated the petitioner with cruelty. The word “cruelty” has not been defined under the Act, but in a catena of judgments, Apex Court has stated the meaning and outlined the scope of the term ‘cruelty’. It has been held that cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health.
11. Cruelty may be physical or mental. Mental cruelty is that conduct of a party 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. Mental cruelty must, therefore, be of such a nature that the parties cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is settled that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured such apprehension as is contemplated in the section. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the attending facts and circumstances taken cumulatively. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. Moreover, in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence.
12. Applying the above principles to the present case, we find that right from the beginning the matrimonial relationship between the parties was not normal. It is not the case of the appellant that she was having a happy married life. The appellant has not only denied the allegations made by the respondent, she has made counter allegations. According to the appellant, in fact the cruelty and desertion have been committed by the respondent and not by her. She has tried to put the blame at the doorstep of the respondent.
13. In the case in hand, the respondent has led evidence in harmony with the averments made by him in the plaint. We find that the respondent in his testimony has described in detail the cruelty meted out to him. In his statement the respondent has inter alia stated that a number of times, the appellant came to the University and insulted him in front of his colleagues and students and threatened him with dire consequences; that the respondent was living in a joint family and from the very beginning the appellant wanted him to get separated from his family and have a separate residence. The respondent was subjected to lengthy cross-examination but nothing has come out which creates doubt in his testimony. The statement given by the respondent is corroborated by the statement given by Dr. S.K. Sen Gupta (P.W. 1).
14. The appellant Smt. Jayanti examined herself as D.W. 1 and she was also cross-examined. The appellant refuted the allegations made by the respondent, specifically denied of having visited the appellant in the University or of having insulted him there. The appellant further stated that in the year 1993 it was the family members of the respondent who had thrown her out of the matrimonial home. However, in her cross-examination the appellant admitted that she had walked out of the matrimonial home on account of the cruelty inflicted upon her by the family members of the respondent.
15. Sri Balendra Prasad Tripathi, the father of the appellant, who was examined as D.W. 2, in his cross-examination admitted that all the problem in the family started after some family members of the appellant’s family were murdered. He deposed that after the murder the appellant’s elder brother, uncle, grandmother, mother and grandfather were alive and the respondent was the only earning member in the family. It was categorically stated by him that he had no complaint with the respondent.
16. The appellant initially stated that she was thrown out of her matrimonial home but in cross-examination she admitted that she had walked out of the matrimonial home on account of cruelty inflicted upon her by the family members of the respondent. The appellant has thus made false and contradictory averments; firstly, with regard to her leaving the matrimonial home and secondly, with regard to her visiting the University. The appellant had alleged that she had left the matrimonial home on account of the cruelty inflicted upon her by the family members of the respondents but she did not lead any evidence to that effect. The appellant in her cross-examination has admitted that she knew Dr. S.K. Sen Gupta and there was no animosity between the two. Dr. S.K. Sen Gupta (P.W. 1), was a Reader in Deen Dayal Upadhyaya University, Gorakhpur and there is no reason to disbelieve him. In fact, a few months after leaving her matrimonial home, the appellant wrote a letter dated 1.10.93 (48 Ka/1) to the respondent in which she has threatened the respondent that she would write letters to Semra Gaon mentioning all his exploits and even minute private details of his family and thereby insult the respondent; she would then write letters to the relatives of the respondent and, thereafter, she would write letter to Shahi to get the respondent killed. In the said letter, the appellant has admitted that it was totally her fault and there was no fault on the part of the respondent and that she be pardoned for her conduct. The appellant has written several letters before and after leaving her matrimonial home. In her letter dated 25.10.1998 (51 Ka) the appellant has accepted that she had visited the University and had misbehaved with the respondent.
17. The Family Court after taking into account the oral and documentary evidence on record has concluded that the appellant had visited the University on a number of occasions and had insulted and humiliated the respondent in front of the staff and the students. There is no perversity or illegality in the finding recorded by the Family Court.
18. Admittedly, four male members of the respondent family, namely Bhagwant Pandey (grandfather), Ram Ugar Pandey (father), Sahodar Pandey (uncle) and Subhash Pandey (brother) were murdered on 15.6.1987. Evidence shows that after the murder of four male members of his family the respondent was the only earning male member in the family. The responsibility of the family of his brother fell upon him but instead of supporting the respondent the appellant continued to insist for a separate residence and on refusal of the respondent, the appellant left him. Family Court has held that such a conduct amounts to cruelty.
19. The appellant wanted to get her husband separated from his family and at the time when the respondent was needed most in the family, the appellant left the respondent. In case the appellant wanted the respondent to have a separate residence she must have some justifiable reason. In the case in hand, we do not find any justifiable reason for the appellant in forcing the respondent to separate from his family.
20. The continuous pressure exerted by the appellant on the respondent to get separated from his joint family and the conduct of the appellant in going to the University and insulting the respondent in front of teachers and students construed an act of cruelty.
21. That apart, in the case in hand the appellant not only denied the allegations made by the respondent but also made counter allegations. In her written statement the appellant alleged that the respondent was having extra marital relationship with one Smt. Asha Pandey, daughter of Sri Raj Kishore Pandey, who was alleged to be the wife of Surendra Nath Pandey alias Sankarshan Ramanuj Das, the uncle of the respondent.
22. In his replication the respondent had categorically stated that his uncle Surendra Nath Pandey was a bachelor; there was no lady by the name of Asha Pandey in their family; Brijesh and Venkatesh were the sons of Sri Rajendra Pandey and Daizy Pandey. Sri Rajendra Pandey was the younger brother of Surendra Nath Pandey and the Daizy was the daughter of Raj Kishore Pandey.
23. Sri Yogendra Pandey (PW-3), son of Raj Kishore Pandey appeared in the witness box and categorically stated that he had five sisters; none of his sister was named as Asha Pandey; none of his sisters was married to Surendra Nath Pandey; Surendra Nath Pandey was a bachelor; her sister Daizy Pandey was married to Rajendra Pandey; Venkatesh Pandey and Brijesh Pandey were the sons of Rajendra Pandey and Daizy Pandey. Yogendra Pandey is the son of Raj Kishore Pandey and real brother of Daizy Pandey. There is no apparent reason to disbelieve him.
24. The Family Court after taking into consideration the entire evidence on record came to the conclusion that Surendra Nath Pandey was a bachelor and the appellant had failed to establish that the respondent was having an extra marital affair with one Asha Pandey, the alleged wife of Surendra Nath Pandey. In fact, the Family Court has held that the appellant had failed to establish the very existence of Asha Pandey.
25. The learned counsel for the appellant after having failed to point out any infirmity or illegality in the finding recorded by the Family Court has submitted that mere failure to prove the allegation of extra marital affair would not entitle the husband to have a decree of divorce.
26. By a catena of decisions of the Apex Court it is settled that making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in Court against the spouse would, in the facts of the case, amount to causing mental cruelty to the other spouse.
27. In the case in Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, MANU/SC/0316/2003 : (2003) 6 SCC 334, the Apex Court considered the question, whether the averments, accusations and character assassination in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13 (1) (i-a) of the Act, held as under :
“7. The position of law in this regard has come to be well-settled and declared that leveling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court.”
28. From the evidence on record it stands established that there was a sustained attitude of causing humiliation and calculated torture on the part of wife to make the life of the husband miserable. The appellant had no concern for public image of the respondent and by her conduct the appellant had embarrassed the respondent leading to humiliation. The appellant by her conduct had created a dent in the reputation of the husband and has thereby caused mental cruelty to the respondent.
29. We have no trace of doubt that the finding returned by the Family Judge relating to mental cruelty cannot be said to be in ignorance of material evidence or exclusion of pertinent materials or based on perverse reasoning. In our view, the conclusion on that score clearly rests on proper appreciation of facts and, hence, we concur with the same.
30. In the case in hand, the appellant wife and the respondent husband are staying apart from 27.4.1993, It is now more than twenty two years since they have been living separately. This separation has created an unbridgeable distance between the two.
31. We are, satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, Courts while scrutinizing the evidence on record to determine whether the ground(s) alleged is/are made out and in determining the relief to be granted, have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie.
32. In Naveen Kohli v. Neelu Kohli, MANU/SC/1387/2006 : (2006) 4 SCC 558, where the husband and wife had been living separately for more than 10 years, the Apex Court observed that once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. It was further held that in case it was found that the breakdown was irreparable, then divorce should not be withheld.
33. In Samar Ghosh v. Jaya Ghosh, MANU/SC/1386/2007 : (2007) 4 SCC 511, the fact that the husband and wife had lived separately for more than sixteen-and-a-half years was also taken into consideration while concluding that matrimonial bond had been ruptured beyond repair because of the mental cruelty caused by the wife. The Apex Court held that where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. It was held that in such cases refusal to sever tie would lead to mental cruelly.
34. There is absolutely no dispute that in all matrimonial disputes, every effort should be made to preserve a marriage, but when the marriage is totally dead nothing is gained by trying to keep the parties tied forever to a marriage. In such an eventuality, it is apposite for the parties to separate gracefully. In this Court we unsuccessfully tried to mediate between the parties. The respondent is not willing to take the appellant back. Even if the decree of divorce is denied to the respondent, there are hardly any chances of the appellant leading a happy life with the respondent because a lot of bitterness has been created by the conduct of the appellant. We are of the firm opinion that the respondent has caused by her conduct mental cruelly to the appellant and the dissolution of marriage will relieve both sides of pain and anguish.
35. In so far as permanent alimony is concerned, we were inclined to grant a some of Rs. 20 Lacs as one time permanent alimony. Sri K.K. Mani, learned counsel for the respondents on the basis of instructions has stated that the respondent husband was ready to pay the same. However, Sri R.K. Chaube, learned counsel for the appellant, has submitted that the appellant was not ready to accept one time permanent alimony, hence no orders with respect to permanent alimony be passed in this case.
36. In the circumstances, we have refrained ourselves from passing any order in regard to alimony. In view of the discussions made above, we dispose of this appeal affirming the decree of divorce granted by the family Court dissolving the marriage between the parties, namely, Om Prakash Pandey and Jayanti Pandey. No order as to costs.