HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Court No. – 30

Case :- FIRST APPEAL No. – 109 of 2012

Appellant :- Pradeep Rawat

Respondent :- Smt. Asha

Counsel for Appellant :- Mahesh Narain Singh,M.N. Singh,Nitin Sharma

Counsel for Respondent :- Amitabh Agarwal

Hon’ble Ashwani Kumar Mishra,J.

1. This appeal under Section 96 of the Code of Civil Procedure is directed against judgment and decree dated 7.1.2012, passed by Additional District Judge, Court No.19, Bulandshahar, in Original Suit No.515 of 2010. The court below by the judgment has dismissed the suit filed by plaintiff appellant under Section 13 of the Hindu Marriage Act, 1955 for divorce on account of cruelty and desertion.

2. Facts in brief, which are not in issue, are that the parties are both Hindu, and got their marriage solemnized as per the rituals at Bulandshahar on 7th February, 2005. It is claimed that in March, 2005, the defendant wife left her matrimonial house, and returned with husband again in May, 2005. A daughter out of such marriage was born on 8th October, 2005. It is claimed by husband that wife again left her matrimonial house in the end of year 2005, and again returned to live with husband in December, 2007. It is then claimed that wife left the husband on 6.6.2009. Husband, consequently, initiated proceedings for restitution of conjugal rights under Section 9 of the Hindu Marriage Act at Bulandshahar on 9.11.2009. It is on record that a second daughter with the wedlock was born on 27th December, 2009. Treating such conduct of wife as amounting to desertion, suit for divorce was filed and was numbered as Original Suit No.515 of 2010 on 29th March, 2010. On 15th July, 2010, an application was filed for withdrawal of suit filed under Section 9 for restitution of conjugal rights. Ultimately, the suit under Section 9 was dismissed as withdrawn on 25th February, 2011. Proceedings for seeking custody of minor daughters was also initiated in November, 2010, but the same was also ultimately withdrawn. A subsequent suit No.393 of 2012 has also been instituted by the appellant for divorce, proceedings whereof were stayed on 29th July, 2013. An application for withdrawal of suit No.393 of 2012 has also been moved on 30th September, 2013, which is pending. Subsequent proceedings for custody of children were instituted in the year 2014 at the instance of the husband, which is stated to be pending. Learned counsel for wife, however, points out that subsequent proceedings initiated for custody of children have also been withdrawn.

3. Before the trial court, pleadings were exchanged between the parties. According to husband, the wife ever since her marriage would leave her matrimonial house on flimsy grounds, and such conduct of her has inflicted mental cruelty upon him. It is also stated that the wife for no good reason has refused to perform her matrimonial obligations, and deserted him. The wife, on the other hand, has denied the plaint averments, and it is stated that she was regularly harassed by her in-laws, but considering the fact that there are two daughters born out of the wedlock, she is willing to live at her matrimonial place. Various other grounds have been stated in order to demonstrate that huge amount was spent in the marriage, and that she was being harassed for arranging dowry. According to wife, she was virtually thrown out of the house, while she was in advance stage of pregnancy, and the plea of desertion was, therefore, termed to be false. Wife, consequently, has strongly opposed the plea of divorce sought by the husband. On the basis of respective plea of the parties, trial court framed issue as to whether husband is entitled to a decree of divorce on account of cruelty on part of wife? and other issue was with regard to the relief to be granted. The husband has appeared in support of his case as PW-1, and has also filed various documents relating to family health plan, life insurance policy, salary certificate etc. The defendant wife has also appeared in the witness box and her statements was recorded as DW-1. Father of wife has also appeared as DW-2, and various documentary evidence were also adduced.

4. Trial court on issue no.1 has recorded a finding that marriage was performed between the parties, out of which two daughters were born. So far as plea of cruelty is concerned, the trial court has considered the respective plea of the parties and also evidence adduced to return a finding that wife had not perpetrated any cruelty upon the husband. The court has further noticed that PW-1 in his statement has stated that he has never made any complaint or protest against the wife with regard to any act of cruelty against him or his parents. The trial court also took note of the statement of husband during cross examination that his wife never ill treated him and no act of cruelty was performed against him. Court below noticed that absolutely no good ground has otherwise been brought on record by the husband to seek decree of divorce. Since no reasons have been put forth by the plaintiff appellant to seek divorce, and his plea was otherwise not covered within the ambit of Section 13, as such, the court has dismissed the suit. Trial court has further taken note of the fact that during pendency of Section 9 proceedings, suit was filed by the husband for divorce, and there was no justification for the husband to simultaneously seek restitution of conjugal rights, and also claim divorce. Issues of custody are also noticed. The court has found that the appellant was allowed access to his daughters, and on such count also, an act of cruelty cannot be entertained. With such finding, the suit has been dismissed.

5. Sri Nitin Sharma, learned counsel appearing for the appellant, submits that in the facts and circumstances of the present case, there is an irretrievable break down of marriage, and therefore, the decree of divorce would be in interest of both the parties. It is stated that for the last 7 years, parties have not lived together, and the court below has erred in dismissing the suit. Reliance is placed upon judgments of the Apex Court in Satish Sitole Vs. Ganga, 2008(7) SCC 734, and V Bhagat Vs. D Bhagat, 1994 (1) SCC 337. Reliance is also placed upon a decision of this Court in Second Appeal No.844 of 2006 (Narayan Prasad Saraswat Vs. Smt. Shaifali @ Muniya), dated 18.4.2016. Learned counsel has also invited attention of the Court to aforesaid judgments, in order to contend that in the facts and circumstances of the present case the parties have not been able to live together and differences have grown such that it is not possible to revive matrimonial relations between the parties, and therefore, the plea of divorce would be the only just outcome for the parties.

6. Sri Amitabh Agarwal, learned counsel for the respondent defendant, on the other hand, submits that the plea of divorce is set up on wholly non-existent and false ground, and this Court in the factual backdrop, noticed above, may not interfere in the matter. It is stated that the husband cannot be permitted to claim divorce as a matter of right, when there is no act of cruelty on part of wife. Submission is that Section 13 cannot be invoked by a party, so as to put premium on its own default. Learned counsel has placed reliance upon a decision of Apex Court in Savitri Pandey Vs. Prem Chandra Pandey, 2002 (1) JCLR 221. A Division Bench judgment of this Court in Ram Babu Babeley Vs. Smt. Sandhya, 2006(1) JCLR 393 is also relied. Learned counsel with reference to paras 36 to 38 of the decision in Ram Babu Babeley (supra) contends that a decree of divorce ought not to be granted on the ground of irretrievable breakdown where the husband is at fault, and is trying to put premium upon his own misconduct by seeking a decree of divorce. An application is also filed on behalf of wife under Section 28 of the Hindu Marriage Act for directing the husband to pay maintenance for her own self and for her two minor daughters. It is brought on record that the daughters are now 11 years and 07 years of age respectively, and are studying in good school. It is claimed that a private tuition has also been arranged for them. According to wife, husband is earning salary of Rs.40,000/- and is otherwise in possession of ancestral property including nearly 40-50 acres land, from which he is generating handsome amount. Prayer, therefore, is made to grant appropriate maintenance to two minor daughter and wife.

7. I have heard Sri Nitin Sharma, learned counsel for the appellant, and Sri Amitabh Agarwal, learned counsel for the respondent wife, and have perused the materials brought on record.

8. The factum of marriage between the parties as well as birth of two minor daughters out of wedlock are admitted. While marriage got solemnized in February, 2005, the first daughter was born in October, 2005 itself. The parties continued to live together. Although the husband alleges that the wife had left her matrimonial house for periods of nearly two years from October, 2005 to December, 2007, but admittedly no proceedings or complaint was instituted in that regard. According to wife, difference between the parties had emerged only on account of interference by the parents of husband, who were interested in subjecting her to dowry. It is further admitted on record that second daughter was born out of the wedlock on 27.12.2009. It is only on 9th November, 2009 that a case under Section 9 for restitution of conjugal rights was filed by the husband. It is apparent on record that on the date of filing of section 9 proceedings, wife was in advance stage of pregnancy, and her statement that she was not being properly looked after, as such she stayed at her parents house, cannot be seriously doubted. It is stated that the appellant instead of taking care of her wife, who was in advance stage of pregnancy, proceeded to institute legal proceedings for restitution of conjugal rights. Proceedings under Section 9 although were pending, yet simultaneous proceedings were initiated by appellant for divorce on account of cruelty. On the date of filing of suit for divorce, it is apparent that suit for restitution of conjugal rights under Section 9 was also pending. This Court finds substance in the view taken by the court below that action on part of the husband to seek divorce during pendency of application under Section 9 for restitution of conjugal rights was wholly misconceived. It seems that the husband was hellbent upon somehow abandoning her wife and two minor daughters. Till 2009, there has never been a single credible allegation of cruelty performed by the wife against the husband or his parents. In the cross-examination, husband has clearly accepted that no act of cruelty was ever performed by wife against him. The conclusion drawn by the court below on such evidence that plea of cruelty is not established, is wholly justified, and requires no interference.

9. The evidence, which has been adduced on behalf of husband fails to demonstrate any act of cruelty perpetrated against the husband by the wife. Mere levelling of allegation of cruelty would not suffice and does not merit grant of decree of divorce. Cruelty is clearly defined under Section 13 of the Hindu Marriage Act. In case the definition under Section 13(1) is examined, it would be apparent that necessary ingredients to attract any of the sub-clauses are not made out on record of the present proceedings. The marriage was solemnized and consummated. On the date when suit for divorce was instituted, the parties had not lived sufficiently for a period of two years. Even provisions of sub-section 1(a) would also not apply in the facts of the present case. In the absence of any evidence of cruelty established on part of the wife, appellant cannot raise a grievance against the decree passed by the court below, rejecting his plea, before this Court. No good ground, consequently, is made out to grant of decree of divorce to the husband.

10. It is brought on record that before this Court also the parties were directed to appear personally so as to explore possibility of reconciliation between them. The wife through out the proceedings showed her willingness to stay with husband, but for unknown reasons, the husband pressed his plea of divorce.

11. So far as plea of irretrievable break down of marriage is concerned, judgments, which are relied upon by Sri Sharma, are clearly distinguishable. The judgment in Satish Sitole (supra) was delivered in a case where out of 16 years’ of marriage, the parties had lived separately for 14 years, and there was no Issue born out of the wedlock. It further transpires that the relations between the parties were otherwise strained, inasmuch as criminal proceedings under Section 498-A IPC were already instituted, and were pending. Hon’ble Supreme Court, moreover, had invoked its jurisdiction under Article 142 of the Constitution of India to pass a decree in Satish Sitole (supra), which was for doing complete justice between the parties and cannot be relied upon to support appellant’s case. In V Bhagat (supra) also, the facts are quite different. The acts perpetrated by the wife in the facts of the case were treated as sufficient proof of cruelty, which however is not the case here. Judgment of this Court in Narayan Prasad Saraswat (supra) is again distinguishable on facts of the present case. Paras 21 and 22 of the judgment, which are relied upon, are extracted hereinafter:-

“21. In addition to legal errors as discussed above, the two lower courts have not considered these important material points at the time of deciding the matrimonial disputes, which amounts to infirmity and perversity in their judgments. Considering past experiences I am convinced that any further attempt at reconciliation will be futile and it would be in the interest of both the parties to sever the matrimonial ties since the marriage has broken down irretrievably. In light guidelines laid down by Apex court in Satish Sitole v. Ganga, (2008) 7 SCC 734 I am of the view that since the marriage between the parties is dead for all practical purposes and there is no chance of it being retrieved, the continuance of such marriage would itself amount to cruelty. This contention of appellant’s side is not unacceptable that the appellant’s marriage with the respondent had completely broken down with no hope of revival and compelling them to live together would be very harsh, insensitive and unjust. Therefore said impugned judgments being erroneous and perverse are liable to be set aside.

22. Considering these facts, circumstances, the factum of living separately for many years and no possibility of any reconciliation, harmonious conjugal relations or future congenial matrimonial relations, it appears appropriate that when it is not possible for the parties to live together and to discharge their marital obligations towards each other, then there is no reason to continue their agony. Therefore on the basis of the forgoing discussion, the decree for dissolution of marriage should be granted on the ground of desertion and mental cruelty. The above substantial question of law is decided accordingly.”

12. The Division Bench of this Court in Ram Babu Babeley (supra) had an occasion to deal with plea of irretrievable break down pressed by the husband to secure a decree of divorce. After noticing the judgment of Apex Court in V Bhagat (supra), the Division Bench relied upon a subsequent decision of the Apex Court in A. Jayachandra Vs. Aneel Kaur, to observe as under in para 33:-

“33. The recent ruling of the Hon’ble Supreme Court in A. Jayachandra v. Aneel Kaur : was also cited before us . In this case both the appellant husband and the respondent wife developed love affairs when they were student in a medical college . They were married on 10.10.1978. Both of them got employment in a hospital established by the husband’s father Dr. A Ram Murthy. They had two children out of this wedlock. On 5.3.1997 the husband gave a notice to the wife seeking divorce on the ground of mental cruelty alleging that the behaviour of the wife was obnoxious and humiliating and they had not shared the bed and there was no physical contact between them for over two years. Reply was given by the wife on 21.3.1997 denying the allegations and suggesting that there should be a free and heart to heart discussion to sort out the problems. The discussion took place but in vain. Ultimately the husband filed a petition under Section 13 of the Hindu Marriage Act on the ground of cruelty alleging that the conduct of the wife was causing mental agony and there was no sharing of the bed and cohabitation for more than two years . It was further alleged that the wife had ill-treated her husband , abused him in vulgar language in the home and at the hospital and at other places thereby causing mental agony, damage and loss personally and professionally and also in the social circle and she had also levelled allegations against his character also. She had filed caveats at different places describing wrong address of the husband to defame him and create an impression of her innocence. The wife in her written statement denied the allegations and stated that her bona fide act in advising her husband to act properly and to be decent in his behaviour was misconstrued and it was being projected as nagging and insulting behaviour and the petition for divorce was based on unfounded allegations.”

After noticing the law on the subject, following principles have been laid down in para-36 of the judgment:-

“36. The discussion attempted above leads to the following conclusions:

(i) The irretrievable beak down of marriage is not a ground for divorce by itself. But while scrutinizing the evidence on record to determine whether the grounds on which divorce is sought are made out, this circumstance can be taken into consideration as laid down by Hon’ble Apex Court in the case of Savitri Pandey v. Prem Chand Pandey and V. Bhagat v. Mrs. D. Bhagat (supra). (ii) No divorce can be granted on the ground of irretrievable break down of marriage if the party seeking divorce on this ground is himself or herself at fault for the above break down as laid down in the case of Chetan Das v. Kamla Devi, Savitri Pandey v. Prem Chand Pandey and Shyam Sunder Kohli v. Sushma Kohli (supra).

(iii) The decree of divorce on the ground that the marriage had been irretrievably broken down can be granted in those cases where both the parties have levelled such allegations against each other that the marriage appears to be practically dead and the parties can not live together as laid down in Chandra Kala Trivedi v. Dr. S.P. Trivedi (supra).

(iv) The decree of divorce on the ground that the marriage had been irretrievably broken down can be granted in those cases also where the conduct or averments of one party have been so much painful for the other party ( who is not at fault) that he cannot be expected to live with the offending party as laid down in the cases of V. Bhagat v. D. Bhagat, Romesh Chandra v. Savitri, Ahok Hurra v. Rupa Bipin Zaveri and A. Jayachandra v. Aneel Kaur (supra).

(v) The power to grant divorce on the ground of irretrievable break down of marriage should be exercised with much care and caution in exceptional circumstances only in the interest of both the parties, as observed by Hon’ble Apex Court at paragraph No. 21 of the judgement in the case of V.Bhagat and Mrs. D. Bhagat (supra) and at para 12 in the case of Shyam Sunder Kohli v. Sushma Kohli (supra).”

13. I am in respectful agreement with the view taken by the Division Bench of this Court in Ram Babu Babeley (supra). In the facts of the present case, since I find that wife is not at fault, and no act of cruelty has been performed by her, husband would not be entitled to a decree of divorce on account of irretrievable break down, merely because he does not intend to continue with the marriage any longer. Such attitude of husband would otherwise not command any sympathy of law, as two minor daughters are also sufferer of unreasonable act on part of husband. For all such reasons, I find that this appeal lacks substance and deserves rejection.

14. This leaves the Court to deal with plea for grant of maintenance to the two daughters and the wife. Both the daughters are studying in good school, and they are also provided with private tuition. The amount paid towards school fee as well as private tuition are not disputed. A minimum amount of Rs.5,000/- per month for each daughter would, therefore, be liable to be paid by the husband. Considering the fact that husband was drawing gross pay of Rs.34,000/- in February, 2017, it would be appropriate that a sum of Rs.5,000/- be directed to be paid towards maintenance to the wife as well. The husband, therefore, shall have to pay a sum of Rs.15,000/- per month to the two daughters and the wife towards their maintenance. The judgment and decree of the trial court, dismissing husband’s suit for divorce is maintained. The wife shall also be entitled to a cost of the proceedings quantified at Rs.10,000/-. The direction to pay interim maintenance stands merged in the maintenance.

15. The appeal, accordingly, is consigned to records.

Order Date :- 9.5.2017

Anil