Madhya Pradesh High Court
Arjundas Aswani on 3 April, 2007
Bench: A Mishra, K Chauhan
ORDER Arun Mishra, J.
1. This appeal has been preferred under Section 19 of the Family Courts Act, 1984 calling in question the judgment and decree dated 5-11-2003 passed in Civil Suit No. 34-A/2002 passing decree of divorce on the ground of cruelty.
2. It is not in dispute that the marriage of Arjundas with Madhuri was performed some time in the year 1994. Husband filed an application under Section 13 of the Hindu Marriage Act seeking divorce on the ground that Madhuri was mentally retarded, still her marriage was performed. She was treated by Doctor Pradeep Kumar, but, her condition ultimately did not improve. She used to go back to her house without permission and brother-in- law; Nanakram used to visit her and Madhuri used to stay with him without informing the husband for several days, her search had to be made number of times. On one of the occasions Nanakram was found with Madhuri in objectionable condition. It was objected to by the husband, at that time he was humiliated. Thus, Madhuri was living an adulterous life, when husband objected false report was lodged against; husband and family members about MARPEET etc., whereas his brothers were residing separately for the last six years, false complaints were lodged. Considering the strained relationship, Panchayat of Sindhi Samaj was convened. Wife obtained a sum of Rs. 1 lakh and a compromise (P-6) was entered into for obtaining divorce by mutual consent, that was filed in the Court. Sum of Rs. 1 lakh was received by the wife. She started demanding further amount which was not paid. Thereafter she lodged a false report under Section 498A of the IPC. Thus, her conduct was that of cruelty. She levelled other false allegations as against family and husband. It was also an act of cruelty. It was not any more possible to live with the wife. Hence, application seeking divorce was presented.
3. In the written statement it was contended by the wife that she was in a fit mental state, no cruel treatment was imparted. She was not having illicit relation with Nanakram his brother-in-law. It was a false allegation levelled as she was harassed, she had lodged a police report. She was not having any source of livelihood. She was spending amount out of Rs. 1 lakh received by her in the Panchayat. She has never treated her husband with cruelty. On the other hand she was harassed. There was no reason to obtain the divorce. She wanted to live with her husband. Husband was also not able to properly look after the daughter. As such it was prayed for that the application seeking divorce be dismissed.
4. The Court-below has found that there was strained relationship between the parties. They have mutually agreed for divorce. In the Panchayat convened by Sindhi Samaj an agreement (Exh. P-6) was executed. A sum of Rs. 1 lakh was received by the wife towards the permanent alimony for obtaining the divorce with mutual consent. There were criminal cases between the parties, false allegations were levelled by wife as to illicit relationship of Arjundas with her sister-in-law namely; Reshma. Decree for divorce has been granted. Subsequently wife has come up in this appeal.
5. Shri Atul Choudhary, learned Counsel appearing on behalf of the appellant has submitted that the decree for divorce could not have been granted by the Court-below as it was not pleaded that Madhuri had levelled an allegation as to illicit relationship of Arjundas with Reshma; his brother’s wife. Thus, the main ground employed by the Trial Court for passing the judgment and decree could not have been employed to dissolve the marriage. Thus, the judgment and decree be set aside. There is daughter living with the husband and the wife wants to live with the husband. She treated with cruelty, as such decree passed be set aside.
6. Shri Satish Chaturvedi, learned Counsel appearing on behalf of the respondent husband has submitted that the parties are residing separately for the last more than six years. False criminal case under Section 498A, IPC was filed by the wife. Husband is also being prosecuted falsely for commission of offence of bigamy under Section 494 of the IPC. In the circumstances, parties have decided to separate in the Panchayat convened by the Sindhi Samaj and an agreement (P-6) was entered into on which wife had acted upon and accepted an amount of Rs. 1 lakh. It was not possible for the parties to live together in the circumstances of the case. Relationship has become strained. Thus, no case for interference in the finding recorded by the Court below was made out. There was pleading made in the application that there were several other false accusations also made against the husband which amounted to cruelty, as such evidence that has been adduced indicates that even character of the husband was doubted, could have been considered apart from other circumstances and that is not the main ground for divorce in the facts and circumstances of the instant case, since it was not possible for the parties to live together, no case for making an interference in this appeal has been made out.
7. After hearing learned Counsel for the parties, going through the evidence on record and particularly considering the fact that there were two criminal cases filed by the wife, in one of the criminal cases under Section 498A, IPC husband has been convicted by the Judicial Magistrate First Class, Satna as per the judgment dated 31-8-2004, he was sentenced to imprisonment for one year and fine of Rs. 1,000/-. On appeal being preferred in the Court of Sessions, he has been acquitted giving benefit of doubt. It is also not in dispute that the husband was arrested and was kept in jail for some time in connection with commission of offence under Section 498A of the IPC. It was also not disputed at bar that there was yet another criminal case pending as against the husband for commission of offence of bigamy under Section 494, IPC. Counsel were not aware of an outcome of the same. However, fact remains that there was yet another prosecution launched by the wife against the husband. Thirdly we find that considering the strained relationship between the parties meeting of Sindhi Samaj was convened and admittedly an agreement (P-6) was entered into on 19-11-2001 in which parties have agreed for obtaining divorce by mutual consent. Husband had agreed to pay a sum of Rs. 1 lakh towards maintenance of the wife. The wife has admitted receipt of the aforesaid amount of Rs. 1 lakh. No doubt about it that the marriage could not have come to an end until unless a decree of divorce was passed by the Competent Court of jurisdiction by mutual consent, but, the conduct of the parties is writ large from the aforesaid agreement (P-6) that they wanted to separate from each other and sum of Rs. 1 lakh was received by the wife. It was also agreed that the daughter would remain with the husband this fact also goes to indicate that the intention of the parties was to severe relationship for all the time to come due to strained relationship as they were not able to pull their life together any longer. Thus, there was break down of the marriage. It has been ultimately found in the criminal case that the husband was falsely implicated in the criminal case under Section 498Aof the IPC. Levelling of such an accusation that has resulted into initial conviction, thereafter acquittal, amounts to cruelty in view of the judgment dated 6-10-2004, it is clear that the husband has been acquitted in the criminal case. Even if this judgment is not taken into consideration, in our opinion, considering the development between the parties it was not possible for them to live together.
8. In the instant case, when we consider levelling of the allegation of demand of dowry; Madhuri has not stated that any demand of dowry was made by the husband. She has stated that for four years her relationship with the husband was good. Thus, the demand of dowry has not been substantiated by Madhuri. She has stated about harassment by her husband, but, as to not to demand of dowry. In the absence of Madhuri’s statement with respect to demand of dowry, statement of Moolchand as to demand of TV and Sofa Set cannot be said to be reliable. For the same reasons Dharmibai’s statement has to be discarded. Thus, it is clear that false allegation has been levelled by the wife against the husband in criminal case as to the demand of dowry, making such an accusation itself amounts to cruelty.
9. The Apex Court in Romesh Chander v. Savitri (Smt) , has held that in case marriage is dead, emotionally and practically, and there is no chance of its being retrieved, continuance of it would be cruelty. In Vinita Saxena v. Pankaj Pandit (2006) 3 SCC 78, if the facts indicate that parties had crossed the point of no return and it would be futile drag a dead relationship, and moreover, wife’s stay with husband may be injurious to her health. In Rishikesh Sharma v. Saroj Sharma , in backdrop of the facts, husband and wife living separately for long period, there was allegation by the wife that the husband has already remarried and living with another lady and there were criminal cases, it was held that jurisdiction should have been exercised under Section 28 in favour of the husband. Willingness of the wife to live with the husband was not genuine, hence was not accepted.
10. When we consider the facts and circumstances of the instant case coupled with the strained relationship between the parties there was allegation that Madhuri was having illicit relationship with Nanakram and the evidence furnished by Prahlad Singh (P.W. 3) that the wife doubted the character of husband, she doubted that he was having illicit relationship with his brother’s wife namely; Reshma, even if this statement is ignored, though there was foundation in the application that there were several other false allegations used to be made by the wife, it was not specifically pleaded even if this statement is not taken into consideration as to the doubt entertained by the wife relating to character of Arjundas husband, we find that there was other evidence on record which goes to show that the decree for divorce was justified in the facts and circumstances of the case.
11. Thus, we find that no case for making interference in this appeal is made out. Appeal deserves to be dismissed. Same is hereby dismissed. However, in the facts and circumstances of the case, we leave the parties to bear their own costs incurred in this appeal.