Kerala High Court
S. Latha Kunjamma vs K. Anil Kumar on 24 March, 2008
Bench: K Joseph, Harun-Ul-Rashid
1. This appeal is filed by the petitioner/wife in O.P. No. 554/2006 being aggrieved by the judgment dated 7-8-2006 on the file of the Family court Palakkad. The Original petition was filed for dissolution of marriage on the ground of desertion which was dismissed finding that the ground of desertion is not proved and therefore the petitioner/ wife is not entitled to get a decree of divorce against the respondent/husband under Section 13(1)(i-b) of the Hindu Marriage Act. The parties in this appeal are referred to as petitioner and respondent as in the Original Petition. The short facts pleaded by the petitioner are as follows:
2. The petitioner and the respondent are B. Tech Degree Holders in Civil Engineering. The petitioner is employed as an accountant in the District Treasury, Palakkad. The respondent is employed in Nirmithi Kendra, Palakkad. Through the acquaintance at the work place the petitioner and the respondent fell in love with each other. Subsequently their marriage was arranged with the blessings of their parents and their relatives and it was solemnised on 07-03-1999 in accordance with their religious rites and ceremonies at Balu Memorial Auditorium, Kollengode.
3. After marriage the petitioner and the respondent resided together in the house of the respondent for about six months. Thereafter they resided in a rented house at Melamuri, Palakkad. From the very beginning of the married life, it appears that the petitioner and the respondent developed aversion towards each other owing to temperamental incompatibility. Within a short period the relationship between the petitioner and the respondent became strained. They realised that they could not continue to reside together as husband and wife Even though the parents of both parties intervened and tried to resolve the dispute, they could not succeed in their attempt. All of them realised that the marital tie between the petitioner and the respondent has been broken irretrievably.
4. The petitioner and the respondent were convinced that dissolution of their marriage alone will be the solution to their problems. Even though the joint petition for divorce under Section 138 of the Hindu Marriage Act was filed before the Subordinate Judge’s court Palakkad as MOP 40/2004, the respondent did not co-operate at the final stage. Hence that petition was dismissed on 14-12-2005. The petitioner and the respondent resided together at Malamuri till 15-01-2003. The respondent deserted the petitioner since 15-01-2003. Due to the strained relationship the petitioner and the respondent are residing separately for more than two years continuously from 15-01-2003. They are not having any physical contact or mental attachment. There is wilful neglect by the respondent towards the petitioner. According to the petitioner it amounts to permanent abandonment without reasonable cause and amounts to repudiation of marital obligations. The petitioner and the respondent separated from each other intending to put an end to their co-habitation. The conduct of the respondent showed that he desired to put an end to the marital relationship.
5. In the objection filed by the respondent he has denied all the averments in the petition – It is averred that infact the petitioner only deserted him, that he is ready and willing to accept the petitioner and that the respondent was persuaded to give consent for filing a petition under Section 13B of the Hindu Marriage Act. But when he realised the real intention of the petitioner he was constrained to withdraw his consent. The petitioner is in love with her co-worker, decided to get rid of the respondent and that she has deserted the respondent to join with her present finance. The two educated youth who are well placed fell in love with each other and got married on 7-3-1999. Both are engineers. According to the petitioner/wife, from the very beginning of their union life was not very cordial due to cultural differences and temperamental incompatibility and that with a short period after the marriage, the relationship was broken and they could not live together as husband and wife. Both parties have decided to end their marital relationship as can be seen from the joint petition for divorce filed as MOP 40/2004 under Section 13B of the Hindu Marriage Act before the Sub Court, Palakkad.
6. The petitioner as PW1 and respondent as RW1 have been evidence in support of their respective contentions. The Family court after analysing the evidence tendered by PW1 and RW1 entered a finding that the case of desertion set up by the petitioner/ wife is not proved and therefore she is not entitled to get a decree of divorce. The specific case of the petitioner is that the spouses are living separately since 15-01-2003. It is nobody’s case that they have lived together any day after 15-01-2003. Thus the fact that the spouses are living separately since 15-01-2003 stands established. The respondent has also no case that after separation he made any attempt for resumption of co-habitation. He has not filed any petition for restitution of conjugal rights nor has made any demand to co-habit with her. The reason for separate living as explained and narrated in the petition for dissolution of marriage. The filing of joint petition for divorce under Section 13B of the Act shows that within a short period the relationship between the parties was irretrievably broken. Since the parties were convinced that the dissolution of their marriage alone will be the solution to their problems they have filed petition for divorce under Section 13B of the Hindu Marriage Act in the year 2004 itself. It is clear that there is no chance of their coming together or living together again. Irretrievable breakdown of the marriage is not a ground by itself for divorce. But while scrutinising the evidence on record to determine whether the grounds alleged are made out and in determining the relief to be granted, the said circumstances can certainly be borne in mind.
7. False, defamatory, scandalous, malicious, baseless and unproved allegatioas made against the spouse in the written statement may amount to cruelty. The irresponsible insinuation and allegations which were made during the course of litigation against the wife cannot be brushed aside. Such a view was taken by the Rajasthan High Court in the decision reported in Parihar v. Parihar . Pushparani v. Krishan Lal is a case where the wife had in her written statement alleged that an illicit relationship existed between her husband and one Smt. Bindra Devi. When the husband appeared in the witness box the said statement was directly suggested to him in the cross-examination. This imputation was not ground pleaded in the petition by the husband it was held by the Delhi High Court that the allegations of adultery made by the wife in the written statement and at the time of cross-examination could be taken into consideration for granting a decree of divorce on the ground of cruelty. The learned Judge had followed the principle that cruelty subsequent to the institution of the petition could be taken into account to prevent multiplicity of proceedings. The Supreme Court in Upper Ganges Valley Electricity Supply Co. Ltd. v. Electricity Board AIR 1971 SC 683 held that the court can take subsequent events into account mainly on two situations.
i) litigation between the parties ought to be shortened and
ii) to do complete justice between the parties
8. In the decision reported in Smt. Balchandani v. Mulchand Balchandani the Delhi High Court again held that false, defamatory, scandalous, malicious, baseless and unproved allegations made in the written statement filed by one of the spouses amount to cruelty to other party. The Delhi High Court in the decision reported in Sh. Ashok Sharma v. Santosh Sharma followed the same principles and held that such allegations made in the written statement amount to cruelty to other party and that party would be entitled to get a decree of divorce on that ground in that case as well.
9. The Supreme Court in the decision reported in Vijay Kumar Ramchandra Bhate v. Neela Vijaykumar Bhate considered the question whether character assassination in or during divorce proceedings amounts to cruelty. In that case in the written statement filed by the husband, allegations were made against wife branding her as unchaste woman keeping illicit relations sexually and otherwise with a neighbour’s son. Subsequently the husband sought to withdraw those allegations by amendment of the written statement. The amendments were allowed and were actually carried out by the trial court. The Supreme Court held that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra marital relationship constitute grave assault on the character, honour, reputation, status as well as the health of the wife. It is held that 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.
10. The Supreme Court also observed that it is futile for the husband to claim that by the withdrawal of allegations unilaterally by him by filing an application for amendment of the written statement has wiped out completely all those allegations for all purposes. The amendments carried out subsequently will not absolve the husband from being held liable for having treated the wife with cruelty by making earlier such injurious reproaches and statements due to their impact when made and continuing to remain on record. The Supreme Court also had occasion to consider whether the averments made in the written statement had constituted mental cruelty in the decision reported in V. Bhagat V.D. Bhagat 1994 (1) SCC 37. The Supreme Court held that the allegations of “paranoid disorder” “mental patient” “needs phychological treatment to make him act as a normal person” and the statement by the wife that her husband and all the members of his family are lunatics are assertions which constitute mental cruelty of such a nature that the husband cannot reasonably be asked to live with the wife thereafter. The Supreme Court also held that the husband in the position of the petitioner herein would be justified in saying that it is not possible for him to live with the wife in view of the said allegations.
11. The question that requires to be answered based on the submissions made by the appellant is as to whether the averments, accusations and character assassination of the husband attributed to the wife in the written statement and during examination of the parties constitute mental cruelty for substaining the claim for divorce under Section 13(1)(i-a) of the Hindu Marriage Act. Allegations and accusations made in the written statement or suggested in the course of examination and by way of cross-examination if not proved, would amount to worst form of insult and cruelty warranting the claim of the wife being allowed and the same would satisfy the requirement of law. A well behaved, educated, disciplined wife who started married life with her lover under no circumstance can tolerate him who attributes extra-marital relationship. Such disgusting accusations certainly will cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and leaving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with the husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.
12. In the light of the principles enunciated hereinabove we may examine whether the allegations made by the husband in his written statement, in his examination and the question put by his counsel to the petitioner in cross-examination amounts to mental cruelty within the meaning of Section 13(1)(i-a) of the Hindu Marriage Act. The relevant portion of the written statement is as follows: Now the petitioner is in love with her co-worker and wanted to get rid of this respondent. It was the petitioner who deserted this respondent to join her present finance.
In the chief examination of the respondent as RW1 the respondent deposed as follows:
In the cross-examination of RW1 the relevant portion is as follows:
In the cross examination PW1 (petitioner) the question put is extracted as follows:
13. The allegation made in the pleadings filed in the Court and the questions to that effect put by his counsel at his instance in the chief allegation in the pleadings and putting such questions to the wife while she was in the witness box, is bound to cause the wife intense mental pain and anguish besides affecting her career and professional prospects. In the councillor’s report dated 25-3-2006 it is stated that the husband alleged extra marital relationship on wife. The allegations against the wife may not be true; it may also be true; it shows that he assumes thing against his wife which are not well founded. He was not able to prove the allegations levelled against his wife. These assertions do constitute mental cruelty of such nature that the petitioner cannot reasonably asked to live with the respondent thereafter. The wife in the position of the petitioner herein would be justified in saying that it is not possible for her to live with him in view of the said allegations. Despite all that the husband says that he wants to live with the petitioner. The obvious conclusion is that he has resolved to live in agony only to make life a miserable hell for the petitioner as well. This type of callous attitude in the context of the facts of this case leaves no doubt that the respondent was bent upon treating the petitioner with mental cruelty.
14. The husband and wife on several occasions appeared before this Court in person and we had the opportunity to interact with the couple on several such occasions. The petitioner/wife unequivocally submitted that due to the cruel nature and behaviour of her husband she cannot live with him any more. It is abundantly clear that the marriage between the parties has broken down irretrievably and there is no chance of their coming together again.
15. The learned Counsel for the respondent/husband contended before us that it is a well-settled position that where no claim has been made in the pleadings no amount of evidence can be looked into upto a plea which was never put forward. He also contended that the pleadings of the parties form the foundation of their case on which issues are raised, evidence let in and findings arrived at for deciding disputes. The learned Counsel argued that only from the pleadings, the opposite party must know what is the case he has to answer and prove. Otherwise the rules of pleadings and the provision for amendment of pleadings for deciding the real question in controversy between the parties will become meaningless. According to him the Act and Rules enjoins and mandates that in cases where desertion and or cruelty are alleged, the petitioner shall state the date and the circumstances under which the alleged, desertion began and-or the specific acts of cruelty. Since there is no averment of any specific act of cruelty in the petition this Court is not empowered under law to grant divorce on the ground of cruelty. The counsel relied on the decision reported in Mohammed Sageet v. Prakash Thomas . He also cited the decision in Yamanaji H. Jadhav v. Nirmala , Koluthara Exports Ltd. v. State of Kerala AIR 2002 Supreme Court 973, and Suchitra v. Anil Krishnan 2007 (2) KHC 680. The learned Counsel for the respondent submitted that the dismissal of application for amendment to insert the ground of cruelty on the basis of the alleged false imputation made against the appellant in the counter of the respondent precluded the appellant from raising the ground of cruelty. We reminded the counsel that this Court can take subsequent events into account to shorten the litigation between the parties and for doing complete justice to them. Character assassination in and during the course of proceedings amounts to cruelty. Even in cases where such allegations are withdrawn that will not absolve the husband being held liable for having treated the wife with cruelty by making earlier such injurious statements due to their impact when made and continuing to remain on record as held by the Supreme Court in Vijaykumar Ramachandran Bhate v. Neela Vijayakumar Bhate cited supra.
16. No doubt, the burden must lie on the petitioner to establish her case. Proof beyond reasonable doubt is a higher standard proof in trials involving enquiry into issues of criminal nature. The ground of desertion upon which the petition for dissolution of marriage was filed does not require that the petitioner must prove her case beyond all reasonable doubt in matrimonial proceedings. The court below was therefore in error in holding that the proof adduced by the petitioner as PW1 is not sufficient proof for supporting the ground of desertion. The standard of proof required in matrimonial cases under the Act is not to establish the grounds alleged beyond reasonable doubt but merely one to find out whether the preponderance is in favour of the existence of the said fact alleged.
17. The allegations made in this case do not appear to have been the result of any sudden outburst. On the other hand such injurious reproaches accusations and taunts as were found to have been made in this case lend credence to the fact that the husband was persisting in them for sufficiently long time humilating and wounding the feelings of the wife to such an extent as to make it impossible for the wife to live in matrimonial home any longer with the husband.
18. On going through the oral evidence of the parties and the pleadings we are convinced that the findings of the Family Court are not justified on the materials available on records to find that the grounds of desertion is not made out. In the decision reported in Jothish Chandra v. Meera Guha it is held that if one spouse is forced by the conduct of other to leave home it may be that the spouse responsible for the driving out is guilty of desertion which means constructive desertion. The Supreme Court in the case Bipin Chander Jaisinghbhai Shah v. Prabhawati in which it is held that where the wife is forcibly turned out from her marital home by the husband, the husband is guilty of constructive desertion. The test is not who left the matrimonial home first. If one spouse by his words and conduct compel the other spouse to leave the marital home, the former would be guilty of desertion, though it is the latter who has physically separated from the other and has been made to leave the marital home. Going by the decisions discussed above, pleadings and findings on record we are of the view that the respondent had deserted the petitioner and the case will come under the category of ‘constructive desertion’ as the petitioner was compelled to leave her marital home and it is impossible for her to join the respondent. The parties have no contact with each other ever since they are separated on 15-01-2003. In spite of good deal of endeavour on our part to effect reconciliation the same could not be materialised. It was a total impracticable solution. Under the circumstances we find that the factum of separation as well as animus deserendi which are the essential elements of desertion stand proved.
19. The parties are bent upon to continue their litigation and workable solution is not possible. The parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. Hence there is no other option except to allow the appeal and to set aside the judgment of the family court and to grant a decree of divorce. We are also convinced that no useful purpose will be served in keeping such a marriage alive on paper, it would only aggravate the agony of the parties. In Anjana Kishore v. Puneet Kishore and in Swati Verma v. Rajan Verma the Supreme Court held that the marriage between the parties has irretrievably broken down and has been rendered a dead wood, exigency of the situation demands the dissolution of such a marriage by a decree of divorce to put an end to the agony and bitterness. The Supreme Court has observed in Sanat Kumar v. Nandini Agrawal 1990 SCC 475, Adhyatma Bhattar v. Adhyatma Bhattar Sri Devi and in G.V.N. Kameswara Rao v. G. Jabilli 2002 (2) SC 296 that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case and those facts have to be viewed as to the purpose which is revealed by those facts or by conduct and expression of intention both anterior and subsequent to the actual act of expression. These decisions are quoted with approval by the Supreme Court in Durga Prasanna Tripathy v. Arundhati Tripathy . In the decision reported in Naveen Kohli v. Naalu Kohli the Supreme Court observed that once the parties have separated and the separation has continued for sufficient length of time and one of them has presented a petition for divorce it can well be presumed that the marriage has been broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties.
20. Having regard to the peculiar facts of this case, we are of the opinion that the marriage between the parties should be dissolved under Section 13 of Hindu Marriage Act on the ground of cruelty and desertion. We are also of the opinion that this is a fit case for cutting across the procedural objections to give a quietus to the matter. We find in the interest of both the parties the unusual step can be resorted to only to clear up an insoluble mess.
In the result, the appeal is allowed. The judgment and decree under appeal are set aside. The marriage between the petitioner and the respondent is dissolved with effect from today. There will be no order as to costs.