HIGH COURT OF JUDICATURE AT ALLAHABAD
Hon’ble Pramod Kumar Srivastava, J.
SECOND APPEAL No. – 258 of 2012
Appellant :- Puja Suri
Respondent :- Bijoy Suri
Counsel for Appellant :- Vivek Kumar Birla, Shishir Prakash
Counsel for Respondent :- Amit Kumar Srivastava, M.K. Gupta
1. This is another case where a marriage has gone sour. The appellant and the opposite party fell in love, had courtship of about four years, got married, lived together for about two months, and thereafter living separately, quarrelling as well as litigating in matrimonial and criminal cases for about 14 years. In meantime four years ago in year 2012, when second appeal was dismissed in default and before its restoration, the the respondent-husband had solemnized second marriage. Parties have no child from their first marriage, but the respondent-husband had two children from his second marriage. The attempts of mediation between the parties had been made several times, which failed. Parties knew that their matrimonial relations had been damaged beyond repairs, but on one hand wife-appellant had prosecuting several criminal cases against respondent for sending him to jail and on other hand she is prosecuting this appeal for restoration of matrimonial bonds.
2. The applicant Bijoy Suri had filed petition (Original suit no. 22/2004 Bijoi Suri v. Puja Suri) under Section-13 of the Hindu Marriage Act in which it was pleaded that parties had friendly relationship from the time of their studies in New Delhi and had agreed for marriage after completion of studies. Their marriage was solemnized on 12.10.2002 and they live together till 27.12.2002 in New Delhi and Mumbai. The O.P.-Puja Suri was employed in Economic Times, New Delhi while petitioner was employed in bank in Mumbai. When petitioner asked his wife to start carrier in Mumbai, then she had threatened to break the matrimonial relationship. She had also treated the petitioner with cruelty and also stopped co-habitation with him. She had threatened and insulted the petitioner before other persons and informed that she cannot live separately from her mother, who is more important than the petitioner’s job. On the ground of cruelty, petitioner had sought relief of divorce in his petition filed after about 2 years of the marriage.
3. The opposite party Puja Suri had filed written statement, in which she admitted her marriage with petitioner, but denied the other allegations made in the divorce petition and further pleaded that she had always being trying to preserve the matrimonial relationship with petitioner and had got her job transferred to Mumbai. Later on, her job was again transferred to Delhi. She had never treated the petitioner or his family members with cruelty. The parents of petitioner were not happy with their marriage and they were willing to break matrimonial bonds of the parties. The petition has been filed on incorrect facts and is liable to be dismissed.
4. After affording opportunity of hearing to parties, the trial court namely, IIIrd Additional Civil Judge, Senior Division (/ACJM), Gautam Buddha Nagar had decreed the divorce petitioner by its judgment dated 22.1.2011. In this judgment the trial court had given finding that petitioner had proved his case, and it is proved from the evidences that O.P.-Puja Suri had treated the petitioner with cruelty in form of screaming and insulting before others, hurting and complaining in police. Trial court had also found there is evidence to the effect that that before filing of the petition, O.P.-wife had admitted her guilt and confessed to have ill treated the petitioner. This confession was made by her through her e-mail. Trial court had also found that reconciliation proceedings between the parties had failed and there is irretrievable breakdown of marriage, which cannot be saved. On these grounds, trial court had allowed the petition of divorce and dissolved the marriage of the parties.
5. Against the judgment of trial court, Civil Appeal No. 12/2011, Puja Suri vs. Bijoy Suri, was preferred by O.P.-wife, which was heard and dismissed by the judgment dated 14.12.2011 of Additional District Judge/Special Judge (SC/ST Act), Gautam Buddha Nagar. In this judgment, lower appellate court had independently appreciated the evidences and held that parties are living separately from year 2002 and during the very short period of living together, their relationship was not normal. During this period, the wife Pu
6. ja Suri had treated her husband with cruelty. First appellate court had held that from 2002 parties have no physical relationship and the appellant-wife had not tried for restitution of matrimonial bonds. Lower appellate court had also held that there is no evidence to show that appellant is forced to live separately from her husband, and that she herself had not discharged those matrimonial duties, which were expected from her and had treated her husband with cruelty. With these findings, the first appellate court had confirmed the judgment dated 22.1.2011 of trial court and dismissed the appeal.
7. Against the judgment of trial court as well as first appellate court, present second appeal has been preferred by the O.P.-wife of the original suit.
8. At the time of admission of appeal, following substantial questions of law were framed:-
“(i) Whether on the basis of the evidence on record the plaintiff was entitled to a decree of divorce on the ground of cruelty?
(ii) Whether the courts below exceeded their jurisdiction in granting a decree of divorce on the ground of irretrievable breakdown of marriage between the parties?”
9. Learned counsel for the appellant contended that that there has been no evidence that any cruelty has been committed by wife against the petitioner-husband or his family members. Even in his statement the petitioner-husband had not pointed out any particular incident of misbehaviour, except one incident of snubbing and saying ‘shut-up’. He contended that alleged apology through forged e-mail was managed by husband-respondent who had knowledge of pass-word his wife, but these facts we facts were not properly appreciated by lower courts. He further contended that criminal case was lodged on correct facts, and in accordance with legal rights of appellant. The exercise of such legal rights cannot be considered against him. He also contended that it is the petitioner-respondent who has deserted her, therefore appeal should be allowed.
10. Learned counsel for the petitioner-respondent contended that petitioner is facing trial for incarceration in criminal case filed against him by appellant-wife. Apart from it she has been publicly insulting and misbehaving with the petitioner which amount to cruelty. He also contended that burden of proving the fact that e-mail sent from the respondent was forged or was managed by respondent was on O.P.-appellant; and such burden to prove this fact which cannot be shifted on respondent. Therefore in absence of any such evidence, the available evidences were rightly appreciated by lower courts. In these circumstances judgment of lower courts are not erroneous and appeal should be dismissed.
11. The word ”Cruelty’ has not been defined anywhere in the Act. The word appears to have been used in the Section in context of human behaviour in relation to or in respect of matrimonial obligations or duties. Cruelty can be termed as behaviour or conduct of one spouse which adversely affects the other. Thus broadly speaking ”cruelty’ as a ground for the purpose of divorce under Section 13(1)(i-a) can be taken as a behaviour of one spouse towards the other which causes reasonable apprehension in his or her mind that it is not safe to continue the matrimonial relationship. Cruelty can be physical or mental or even intentional or unintentional. The mental cruelty is difficult to establish by direct evidence. It is a matter of inference to be drawn from facts and circumstances of the case. A feeling of anguish and frustration in one spouse caused by the conduct of other can be appreciated on the assessment of facts and circumstances in which the two of them have been living. The inference has to be drawn from overall facts and circumstances considered cumulatively. The allegation of dowry demand and criminal misappropriation of her property (through criminal cases) made by the appellant-wife against the respondent-husband is nothing but mental cruelty of such a nature that respondent-husband cannot be reasonably asked to live with the wife. It cannot be doubted that the appellant-husband must have suffered traumatic experience because of the apprehension of arrest and confinement in prison and the probable loss of reputation and prestige of the husband and his family in the society. The mental agony would also amount to cruelty.
# V. Bhagat v. D. Bhagat, (1994) 1 SCC 337
the Apex Court had held:
“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 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 is 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.”
13. Mental cruelty and its effect cannot be stated with arithmetical accuracy. It varies from individual to individual, from society to society and also depends on the status of the persons. What would be mental cruelty in the life of two individuals belonging to a particular stratum of the society may not amount to mental cruelty in respect of another couple belonging to a different stratum of society. The agonized feeling or for that matter a sense of disappointment can take place by certain acts causing a grievous dent at the mental level. The inference has to be drawn from the attending circumstances.
14. The original petition of divorce was filed on ground of cruelty. So far as this point of concerned, one proof of cruelty was the e-mail sent from the email address of appellant to email address of her husband, in which she had apologized for her overt acts like several times hurting, insulting and hitting husband on road and creating scenes. Its details are quoted in judgment of trial court. The counsel for the appellant had contended that respondent-husband had knowledge of password of his wife and he himself had e-mailed that letter of apology for creating evidences. He contended that respondent-husband could not deny specifically as to whether he had knowledge of email account of his wife or not. So this is proof of his mala fide and overt act.
15. Section 102 of Indian Evidence Act provides that the burden of proof lies on the person who would fail if no evidence is adduced by either side. This particular point was taken by the O.P.-wife that it was a forged and fabricated e-mail emanated from her e-mail account. Sending such e-mailed letter was never denied. In present matter, it was burden on the appellant-wife to prove that said e-mail was sent from her email account was, in fact, not sent by her, but was fraudulently sent by respondent-husband. This fact could not be proved by her. Even for the sake of argument, if it is considered that her husband had knowledge of her pass-word, in that case also there is no evidence to prove that it was husband-respondent who had, in fact, sent that mail. The concurrent finding of fact by the trial court as well as first appellate court regarding cruelty committed by wife-appellant against her husband is based on meticulous scruitiny and appreciation of evidences, which are not infirm or perverse. Such findings cannot be interfered in second appeal without any sufficient reason.
16. The burden lies upon the respondent to establish the charge of cruelty, the question is as to what is the standard of proof to be applied in order to judge whether the burden has been discharged or not. The rule which will govern in matrimonial petitions is, that a fact could be established, if it is proved by a preponderance of probabilities. Proof beyond a reasonable doubt is a proof of a higher standard, which generally governs criminal trials or trials involving inquiry into issues of a quasi criminal nature. Such proof beyond a reasonable doubt could not be imported in matters of pure civil nature especially matrimonial matters.
17. In present matter living separately of the parties for long time, public insult, embarrassment the appellant, the agony and humiliation suffered, charging him with allegations and still facing prosecution for conviction amounts to cruelty by the appellant towards her husband. On the basis of above discussion and considering the facts and circumstances of this matter, it appears that relationship of parties had been deteriorated to the extent that there is no possibility of any reconciliation. Their relationship have reached to the point from where there appears no possibility of any harmonious conjugal relations or their being living together as husband and wife and discharging matrimonial duties. It would mean that apart from other problems that had come in their way, the main problem is the failure of sexual or matrimonial life, and no party appears eager to restore those things. Even the mediation proceedings between the parties have failed.
18. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Taking out faults is expected and is bearable to a certain extent, but petty differences should not be exaggerated or magnified to such an extent to destroy the fabric of marriage of what is supposedly made in heaven. Such differences eventually lead to absence of mutual respect. Such absence of mutual respect, in matrimonial matters would amount to cruelty. Cruelty in matrimonial matters cannot be judged by any predetermined rigid formula. There can be any types of cruelty in matrimonial matters. It may be indirect or atrocious. It can be by gestures or by words. It appear that the categories of cruelty can never be defined.
19. Considering the subsequent events, it is found that the parties cohabited for a short duration of about two and a half month. Then for the last 14 years, they are living separately. The relationship has embittered as appellant had filed criminal cases, which are pending. They are still hurling accusation against each other. Such accusation indicates in no uncertain terms that the spark of love, affection or for that matter, infatuation, has evaporated. There is absence of mutual respect. The behaviour of both the parties indicates the embittered relationship. Both are still undergoing traumatic experience. It is, therefore, held that continuance of such relationship would amount to mental cruelty.
20. For all practical purpose, it has become a dead marriage. In such a situation, the agony of continuing the marriage should not be prolonged. Couple are still not old. A whole life is ahead of them. They can start and build their lives afresh for which respondent had already started. It would be a travesty of justice, if in such a situation, the parties are directed to live together for which no one appears eager. Such direction would only bring more misery in their lives. The wife-appellant is living separately for the last 14 years and nothing has been stated by her that during this period she was laughed at or secluded by his family and friends. The possibility of hypothetical thought of the appellant that he would be socially ostracized if the divorce is misconceived. Such apprehension is an afterthought. The people’s memory is short and one tends to forget the past. Considering the age of the appellant she can still make a fresh start and raise a family. Appellant is in apparently decent job and is not dependent financially or otherwise on anyone else.
21. Marriage is a delicate human relationship in which time flies with love and mutual respect, but in present case the these elements had flied away with time. The marriage of parties had become dead. In view of the aforesaid, considering the facts and peculiar circumstances of this case, continuance of marriage would constitute cruelty. Consequently, the marriage cannot continue any further and is dissolved. Therefore, it is held that the respondent is entitled to the decree for dissolution of marriage under Section 13(1)(i-a) of the Hindu Marriage Act.
22. The orders of the trial court as well as first appellate court on point of cruelty committed by wife-appellant against husband-respondent also are found correct which are hereby confirmed. Therefore on the basis of the forgoing discussion, the decree for dissolution of marriage should be granted on the ground of mental cruelty. The first substantial question of law is decided accordingly in affirmative, against appellant and in favour of respondent. Accordingly the appeal is liable to be dismissed on this ground alone.
23. Learned counsel for the appellant contended that the ground of ”irretrievable breakdown of marriage’ is not sustainable. He submitted that the ground of irretrievable breakdown of marriage can be taken for granting the divorce by Supreme Court only in exercise powers underArticle 142 of the Constitution of India, and this ground cannot be taken by any other Court including High Court for granting relief of divorce, because such ground is not mentioned inSection 13 of the Hindu Marriage Act. This legal plea was not denied by learned counsel for the respondent, who contended that though parties had reached to the point of no return and their marriage had been irretrievably broken down, which cannot be repaired, but such ground is not mentioned in Section 13 of the Hindu Marriage Act.
24. Hon’ble Apex Court had held in
# Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558
“66. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. Because of the change of circumstances and for covering a large number of cases where the marriages are virtually dead and unless this concept is pressed into service, the divorce cannot be granted. Ultimately, it is for the legislature whether to include irretrievable breakdown of marriage as a ground of divorce or not but in our considered opinion the legislature must consider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act, 1955.”
25. Thus it is clear that the ground of irretrievable breakdown of marriage cannot be sustained as ground for granting relief of divorce in matrimonial petition by the courts, except the Supreme Court. This is a case wherein the parties had intimate friendship of a few years, then just before their marriage their differences surfaced, but their marriage was solemnized anyhow on 12.10.2002; but they lived only for about two and a half months together till 27.12.2002, and from then till now, they are continuously residing separately, quarreling and litigating. Many attempts of re-conciliation at different stages of litigation had failed. During this period, appellant had filed criminal case of criminal misappropriation of her articles against the husband, then after dismissal of second appeal in default, the respondent had solemnized second marriage and has children from this marriage and, then after restoration of second appeal appellant had filed criminal case for bigamy against husband-respondent. Apart from it the appellant’s application under section 156 (3) CrPC for initiation of criminal case under section 498-A IPC etc. was filed and rejected, and the revision against the said rejection order was also dismissed, then writ petition in that regard is pending before the High Court for initiation of criminal prosecution against husband. In spite of it they are continuing with legal quarrel through this second appeal also. In every pending petition now the appellant-wife is the complainant-petitioner-appellant and respondent-husband is at receiving end, and in spite of failure of all mediation attempts, the appellant is trying to get the decree of divorce cancelled. What for, only God knows, especially in view of the evidences and concurrent finding of two lower courts that she had never attempted to restore her matrimonial relations. Thus, after living together for about two and a half months, they are in conflict with each other and litigating for about 14 years and there appears no chances of their marriage being retrieved, because firstly, as there is finding of fact of lower courts that appellant herself had not tried to repair the damage caused to her marriage and live with her husband; and secondly, that respondent-husband had performed another marriage and living with his second wife and two children from this marriage, and still there appears no willingness of appellant to live with her husband-respondent. But in spite of this case being of irretrievable breakdown of marriage, such ground cannot be a ground of divorce as held by Hon’ble Apex Court.
26. Although ”irretrievable breakdown of marriage’ is not a ground specifically mentioned in Section-13 of the Hindu Marriage Act, but it, in fact, is the basis of the principle underlying decree of divorce under this provision, as is evident from the meticulous appreciation of the provisions of this Section. The grounds like cruelty, desertion of not less than two years, conversion to another religion, unsoundness of mind, mental disorder, suffering from incurable leprosy, or venereal disease in a communicable form, or renouncement of world, not been heard of as being alive for seven years; or (as incorporated by U.P. State Amendment) reasonable apprehension of harm or injury, non-cohabitation after judicial separation mentioned in Section 13 of the Hindu Marriage Act leads to inference that when such situation has arisen that parties cannot live as spouse and there appears no chances of their re-conciliation, which means the marriage has irretrievably broken down of marriage and there is no chance of it being repaired, then under provisions of Section 13, divorce should be granted. But as Hon’ble Apex Court held that this cause, in its isolation, being not mentioned in Section 13, cannot be taken as ground for granting the divorce. Therefore, although the lower courts had granted the divorce on two independent grounds of cruelty and irretrievable breakdown of marriage, but the second ground of irretrievable breakdown of marriage is exclusive within jurisdiction of Hon’ble Apex Court and is beyond jurisdiction of any other Court in India; therefore, second substantial question of law is decided in affirmative and in favour of appellant.
27. When it is obvious that the marriage between the two cannot, under any circumstances, continue any further and the marriage becomes practically dead, then considering the matters of ”irretrievable breakdown of marriage’, or where the repair of broken marriage becomes impossible, it appears appropriate that such grounds may be accepted as ground for divorce. Therefore, this Court suggests the Law Commission of the State to take appropriate steps to consider for incorporating the ground of ”irretrievable breakdown of marriage’ as grounds of divorce in Section 13 of the Hindu Marriage Act.
28. The point to be decided in this dispute was as to whether the appellant-wife had treated her husband with cruelty or not. This was not a question of law, but was a question of fact that could have been decided on the basis of evidences. As discussed above, the evidences in such matter are dependent on facts and circumstances of other case. In present matter, both the lower courts had found that appellant-wife had treated her husband-respondent with cruelty, due to which their marriage had broken down beyond repairs. Thus, the finding of cruelty by two lower courts, which is based on appreciation of evidences, is apparently correct and acceptable. Such concurrent finding should not be interfered in second appeal by re-appreciation of evidences.
29. On examination of the reasonings recorded by the trial court, which are affirmed by the first appellate court, I am of the view that the judgments of the two courts are well reasoned, and are based upon proper appreciation of the evidence on record. No perversity or infirmity is found in the concurrent findings of fact recorded by the trial court that has been affirmed by the first appellate court to warrant interference in this appeal.
30. In view of the above, this appeal is dismissed.
31. Let a copy of this judgment be sent to Uttar Pradesh State law Commission for taking appropriate measures.