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Smt. Dr. Sarita vs Dr. Vikas Kanaujia on 22 August, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Reserved on: 30.7.2019

Delivered on: 22.8.2019

Court No. – 34

Case :- FIRST APPEAL No. – 31 of 2007

Appellant :- Smt. Dr. Sarita

Respondent :- Dr. Vikas Kanaujia

Counsel for Appellant :- Sujeet Kumar

Counsel for Respondent :- Ravi Kiran Jain, A.K.Srivastava, A.P.Paul, B B Paul, Deba Siddiqui,Gautam,Mohd. Shamim,Sumit Srivastava

Hon’ble Sudhir Agarwal,J.

Hon’ble Rajeev Misra,J.

(Delivered by Hon’ble Rajeev Misra,J)

1. This is defendant’s appeal under Section 19 of Family Courts Act, 1984 (hereinafter refereed to as ‘Act 1984’), challenging judgement and decree dated 20.12.2006, passed by Principal Judge, Family Court, Meerut in Matrimonial Case No. 123 of 2003 (Dr. Vikas Kannaujia Vs. Smt. (Dr.) Sarita), under section 13 (I) of Hindu Marriage Act 1955 (hereinafter referred to as ‘Act 1955’), whereby Court below has decreed suit of plaintiff respondent and consequently, annulled marriage of parties from the date of judgement i.e. 20.12.2006.

2. We have heard Mr. Sujeet Kumar, learned counsel for defendant-appellant, Mr. Ravi Kiran Jain, learned Senior Counsel assisted by Mr. A.P. Paul, learned counsel appearing for plaintiff-respondent.

3. According to plaint allegations, marriage of plaintiff respondent, was solemnized with defendant-appellant on 20.2.2002 at Delhi in accordance with Hindu Rites and Customs. After marriage defendant-appellant came to her marital home i.e. house of plaintiff-respondent situate at Tope Khana Bazar, Meerut Cant, District Meerut. It is the case of plaintiff-respondent that consummation of marriage took place on the first night of defendant-appellant at her marital home. It is alleged by plaintiff-respondent that subsequently, relationship between the parties became strained as according to plaintiff-respondent, defendant-appellant refused to perform her marital obligations to the satisfaction of plaintiff-respondent. It was also alleged that defendant-appellant, misbehaved with mother of plaintiff-respondent, when she was requested to touch feet of elder relatives and obtain their blessings. On 22nd February, 2002, younger brother of defendant-appellant and her maternal aunt (mami) are alleged to have visited house of plaintiff-respondent for taking defendant-appellant to her parental home. According to plaintiff-respondent, behaviour of younger brother of defendant-appellant as well as her maternal aunt was neither friendly nor cordial and they started to allege complaint on behalf of defendant-appellant. Ultimately, they all left marital home of defendant-appellant and went to parental home of defendant-appellant at Delhi along with defendant-appellant. Plaintiff-respondent, brought defendant-respondent back to her marital home on 4.3.2002. In the evening of 4.3.2002, they both went to Udhampur (Jammu and Kashmir) where plaintiff was working as an eye surgeon at Kishan Lal Sharma Memorial, Rotary Eye Hospital Udhampur, However, according to plaintiff-respondent, behaviour of defendant-appellant with plaintiff respondent at Udampur was neither cheerful nor congenial. So much so, that according to plaintiff-respondent, though they were in cohabitation, yet there was no establishment of conjugal relations between the parties in their seven days of stay on account of cold and indifferent attitude of defendant-respondent. Accordingly, parties returned in the morning of 11.3.2002. The thirteenth day function (Terahi Ceremony) of elder brother of father of plaintiff-respondent was scheduled on 17.3.2002 as he expired on 10.3.2002.However, according to plaintiff-respondent, defendant appellant left her marital home in the evening of 17.3.2002, which conduct is unbecoming of a good daughter-in-law. Since then defendant-respondent is residing at her parental home. Repeated attempts are alleged to have been made by plaintiff-respondent to bring back defendant-appellant to her marital home but all went in vain. Plaintiff-respondent also filed a suit under section 9 of Act 1955, which was registered as Suit No. 598 of 2002 (Dr. Vikas Kannaujia Vs. Smt. Dr. Sarita) for restitution of conjugal rights. The defendant-appellant appeared in aforesaid suit and filed an application under section 24 of Act 1955 claiming interim maintenance and litigation expenses. According to plaintiff-respondent, inspite of initiation of above mentioned proceedings, defendant-appellant refused to reside along with plaintiff-respondent at her marital home, which is situate at Meerut. On the aforesaid factual premise, plaintiff-respondent alleged commission of ‘cruelty’ by defendant-appellant upon him and consequently prayed for grant of a decree of divorce on the ground of cruelty as contemplated under section 13 (1) (i-a) of Act 1955.

4. Suit filed by plaintiff-respondent was contested by defendant-appellant. She filed a written statement whereby, not only the plaint allegations were denied but also additional pleas were raised. According to defendant-appellant, she is a well educated lady and never even attempted to break matrimonial life. It is the parents and other relatives of plaintiff-respondent who want to break matrimonial life of defendant-appellant so that plaintiff-respondent could be remarried and their lust for dowry could be satisfied. The filing of petition under section 9 of Act 1955 was admitted to defendant-appellant. However, she pleaded that in the petition under section 9 of Act 1955 date was fixed for conciliation. However, plaintiff-respondent did not appear before Court on date fixed for conciliation. Ultimately, suit under section 9 of Act 1955 was withdrawn by plaintiff-respondent and thereafter suit for divorce has been filed. According to defendant-appellant, the above conduct clearly establishes malicious motive of plaintiff-respondent to bring married life of parties to an end without any valid cause. Defendant-appellant clearly denied commission of any physical or mental cruelty upon plaintiff-respondent or her family members. It was thus prayed that the suit is liable to be dismissed.

5. The parties went to trial. Plaintiff-respondent, in support of his case , adduced himself as P.W.1. and one Mahendra Singh Kannaujia as P.W.2. Plaintiff filed 39 documents vide list of documents (paper no. 31 Ga to 32 Ga), bringing on record the proceedings of different cases pending in Courts at Delhi. Defendant-appellant in proof of her defence adduced herself as D.W. 1 and her brother Sandeep as D.W.2. However, no documentary evidence was filed by her.

6. Court below on basis of pleadings raised by parties, framed following issues for determination:

a) Whether plaintiff-respondent is entitled to decree of annulment of marriage solemnized on 22.2.2002 on the ground of ‘cruelty’ against defendant-appellant?

b) Whether Court has jurisdiction to try the suit?

c) Whether plaintiff-respondent is entitled to any relief?

7. In respect of Issue no.1, Court below concluded that there is no evidence with regard to giving of dowry or harassment of defendant-appellant on account of additional demand of dowry. The proceedings for cruelty against wife punishable under section 498 A IPC and for criminal breach of trust punishable under section 406 IPC have been initiated by defendant appellant one year after the institution of divorce suit. Court below further recorded a finding that even though defendant appellant is working as a junior Doctor in Lady Harding Hospital, New Delhi, yet she has filed a complaint under section 125 Cr.P.C. in the Court of A.C.M.M, New Delhi. As such, intention of defendant appellant is not to have maintenance in case of despair and destitution but to harass plaintiff-respondent. The case of defendant-appellant that plaintiff-respondent and his family members caused physical and mental cruelty upon defendant-appellant was disbelieved by Court below. Defendant-appellant herself admitted in her cross-examination that she had no quarrel with mother-in-law. Her mother-in-law only scolded her but except for the aforesaid, there was no dispute with any member in the family of her in-laws. There were no differences between defendant-appellant and plaintiff-respondent upto 17.3.2000. It may be noted here that except for the solitary incident which took place on 17.3.2002, when defendant-appellant is alleged to left her matrimonial home in the evening even though the thirteenth day function (terahi) of elder brother of father-in-law was going on, no other instance of cruelty was pleaded in plaint. However, this particular conduct on the part of defendant-appellant was not considered by Court below to be sufficient enough to constitute ‘cruelty’ as a single instance does not constitute ‘cruelty’.

8. Plea raised by plaintiff respondent that there was complete indifference and cold attitude on behalf of defendant-appellant towards plaintiff-respondent resulting in deprivation of physical pleasure was not accepted by Court below.

9. However, Court below concluded that commission of cruelty by defendant-appellant upon plaintiff-respondent is established from the fact that defendant-appellant has initiated false criminal cases against plaintiff-respondent and her family members. Placing reliance upon judgement of this Court in Smt. Archana Vs. Dr. P.K. Tomar, 2003 (2) AWC 1119, Court below concluded that such act falls within the category of commission of cruelty. As such suit for divorce filed by plaitiff-respondent was decreed on the ground of cruelty vide judgement and decree dated 20.12.2006.

10. Thus, feeling aggrieved by aforesaid judgement and decree, defendant-appellant has come to this Court by means of present first appeal.

11. Mr. Sujeet Kumar, learned counsel for defendant-appellant in challenge to impugned judgement and decree passed by Court below has submitted with vehemence that impugned judgement and decree passed by Court below are liable to be set aside, as the same are manifestly illegal and in excess of jurisdiction. According to learned counsel for defendant-appellant criminal proceedings were initiated by defendant-appellant after expiry of a period of one year from date of institution of divorce suit. The plaint of divorce suit was not got amended to plead that divorce is also being prayed on account of initiation of false criminal cases. He, further, submits that once the aforesaid factum was not pleaded in plaint, then evidence in that regard could not be looked into as no amount of evidence can be looked into unless a fact has been pleaded. As there was no pleading regarding commission of cruelty by defendant-appellant on account of initiation of false criminal cases by defendant-appellant, pleadings of criminal cases, or documents relating thereto as well as judgement rendered therein could not be looked into. As such, Court below has erred in law in concluding that cruelty was committed by defendant-appellant upon plaintiff-respondent by initiating false criminal cases. As such, conclusion drawn by Court below to grant decree of divorce in favour of plaintiff-respondent on aforesaid basis is unsustainable.

12. He next contends that in the plaint, except for solitary incident which took place in the evening of 17.3.2002, when defendant-appellant left her matrimonial home when the thirteenth day function (terahi) of elder brother of father-in-law of defendant-appellant was being performed, no other instance of cruelty has been detailed. Thus decree of divorce could not have been granted even on the ground of cruelty as a single incident, does not by itself constitute cruelty.

13. He lastly, submits that allegation made by plaintiff-respondent with regard to failure of defendant-appellant to perform her obligations as wife and denial of physical pleasure to plaintiff-respondent to his satisfaction on account of her indifferent attitude could neither be established nor proved in evidence and therefore not taken as a ground by Court below to award decree of divorce. On cumulative strength of aforesaid submissions, it is urged by appellant’s counsel that decree of divorce granted by Court below is liable to be set aside by this Court. To lend legal support to his submissions, he has referred to judgement in Deepika Alias Baby Vs. Naresh Chandra Singhnia, 2000 (0) AIR (All) 148; A. Jayachandra Vs. Aneel Kaur, 2005 (2) SCC 22; Kiran Singh Vs. Shiv Kumar, 2013 (10) ADJ 560.

14. Mr. Ravi Kiran Jain, learned Senior Counsel assisted by Mr. A.P. Paul, learned counsel for plaintiff-respondent has supported impugned judgement. According to learned Senior Counsel, it is established from record that defendant-appellant has deprived plaintiff-respondent of sexual pleasure. He has relied upon paragraphs 4, 5, and 10 of plaint. According to learned Senior Counsel, there is no denial of aforesaid by plaintiff-respondent in her written statement. The findings recorded by Court below at page 73 of respondent’s paper book has been referred to in support of aforesaid submission. He then submits that admittedly, defendant-appellant is daughter-in-law of family. Therefore, it was obligatory on her part to behave in such a manner which is not unbecoming of an obedient daughter-in-law. However, contrary to same, defendant-appellant misbehaved with her mother-in-law. The finding to that effect has been recorded by Court below, which is at page 77 of respondent’s paper book. He further submits that commission of physical and mental cruelty by defendant-appellant upon plaintiff-respondent is well established. To buttress his submission he has referred to findings recorded by Court below which is at page 74 of respondent’s paper book. Lastly it is urged that parties have been living separately since 17.3.2002 and therefore, there has been an irretrievable break down of marriage. As such, in view of aforesaid, the decree of divorce granted by Court below is not liable to be set-aside. Mr. Ravi Kiran Jain in support of aforesaid submissions has relied upon judgements of Supreme Court : G V N Kameswara Rao V/s G Jabilli, 2002 (2) SCC 296; Parveen Mehta V/s Inderjit Mehta, 2002 5 SCC 706; Naveen Kohli V/s Neetu Kohli, 2006 (4) SCC 558; Samar Ghosh V/s Jaya Ghosh, 2007 (4) SCC 511; K Srinivas Rao V/s D A Deepa, 2013 (5) SCC 226; K Srinivas V/s K Sunita, 2014 (16) SCC 34

15. We shall refer to the aforesaid judgements at appropriate place in the subsequent part of this judgement.

16. After hearing counsel for parties, and upon perusal of record, following points of determination arise in this appeal:

A) Whether on the basis of allegations made in the plaint, it can be said with certainty that plaintiff-respondent has duly pleaded and proved commission of physical/mental cruelty by defendant-appellant upon him and therefore, entitled to grant of a decree of divorce under section 13 (i)(a) of Act 1955.

B) Whether proceedings of criminal case could be looked into or referred to by Court below even when criminal proceedings were initiated one year after the institution of divorce suit and plaint was not amended to enlarge the ground of cruelty by pleading initiation of false criminal proceedings.

C) Whether in the absence of any application filed under Order 41 Rule 27 C.P.C. any document filed by the parties in appeal has to be ignored mandatorily as it is not part of evidence.

D) Whether impugned judgement and decree passed by Court below has to be judged on the reasons recorded in judgement or independently of the same.

E) Whether judgement and decree passed by Court below can be sustained on the ground of irretrievable marriage.

17. Before proceeding to consider the points of determination involved in this appeal, it shall be useful to consider meaning of the term “cruelty” in the context of Act 1955

18. The term ‘cruelty’ has not been defined in Act 1955. Consequently, this term has been the subject matter of debate for long. However, recently a Division Bench of this Court in Smt. Sarita Devi Vs. Sri Ashok Kumar Singh reported in 2018 (3) AWC 2328 has considered the question of cruelty in detail in paragraphs 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27 and 29 which read as under:-

“16. In Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 Court considered the concept of cruelty and referring to Oxford Dictionary defines ‘cruelty’ as ‘the quality of being cruel; disposition of inflicting suffering; delight in or indifference to another’s pain; mercilessness; hard-heartedness’.

17. In Black’s Law Dictionary, 8th Edition, 2004, term “mental cruelty” has been defined as, “a ground for divorce, one spouse’s course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse.”

18. The concept of cruelty has been summarized in Halsbury’s Laws of England, Vol.13, 4th Edition Para 1269, as under:

“The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant’s capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exits.”

19. In 24 American Jurisprudence 2d, the term “mental cruelty” has been defined as under:

“Mental Cruelty as a course of unprovoked conduct toward one’s spouse which causes embarrassment, humiliation, and anguish so as to render the spouse’s life miserable and unendurable. The plaintiff must show a course of conduct on the part of the defendant which so endangers the physical or mental health of the plaintiff as to render continued cohabitation unsafe or improper, although the plaintiff need not establish actual instances of physical abuse. ”

20. One of the earliest decision considering “mental cruelty” we find is, N.G. Dastane v. S. Dastane (1975) 2 SCC 326, wherein Court has said:

“The enquiry therefore has to be whether the conduct charges as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent. ”

21. In Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan and Anr. (1981) 4 SCC 250 Court said that a concept of legal cruelty changes according to the changes and advancement of social concept and standards of living. With the advancement of our social conceptions, this feature has obtained legislative recognition, that a second marriage is a sufficient ground for separate residence and maintenance. Moreover, to establish legal cruelty, it is not necessary that physical violence should be used. Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which lead to mental or legal cruelty.

22. In Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105, Court observed that word ‘cruelty’ has not been defined in Act, 1955 but legislature, making it a ground for divorce under Section 13(1)(i)(a) of Act, 1955, has made it clear that conduct of party in treatment of other if amounts to cruelty actual, physical or mental or legal is a just reason for grant of divorce. Cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact about degree. If it is mental, the enquiry must begin as to the nature of cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of conduct and its effect on the complaining spouse. There may, however, be cases where conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, cruelty will be established if conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty.

23. In V. Bhagat v. D. Bhagat (Mrs.), (1994) 1 SCC 337 considering the concept of “mental cruelty” in the context of Section 13(1)(i)(a) of Act, 1984, Court said that it can be defined as conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with 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 other party. It is not necessary to prove that mental cruelty is such as to cause injury to the health of other party. While arriving at such conclusion, regard must be had to the social status, educational level of 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 thus has to be determined in each case having regard to the facts and circumstances of each case.

24. In Chetan Dass v. Kamla Devi, (2001) 4 SCC 250, Court observed that matrimonial matters relates to delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with spouse. The relationship has to conform to the social norms as well. There is no scope of applying the concept of “irretrievably broken marriage” as a straitjacket formula for grant of relief of divorce but it has to be considered in the backdrop of facts and circumstances of the case concerned.

25. In Savitri Pandey v. Prem Chandra Panadey, (2002) 2 SCC 73, Court held that mental cruelty is the conduct of other spouse which causes mental suffering or fear to matrimonial life of other. Cruelty postulates a treatment of party to marriage with such conduct as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious to live with other party. Cruelty has to be distinguished from ordinary wear and tear of family life.

27. In Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778 Court held that complaints and reproaches, sometimes of ordinary nature, may not be termed as ‘cruelty’ but their continuance or persistence over a period of time may do so which would depends on the facts of each case and have to be considered carefully by the Court concerned.

29. In Samar Ghosh vs. Jaya Ghosh (supra) Court said that though no uniform standard can be laid down but there are some instances which may constitute mental cruelty and the same are illustrated as under:

“(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behavior of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behavior of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”

19. The aforesaid Division Bench judgement clearly explains different shades of ‘cruelty’ which by itself are sufficient enough to dissolve marriage on ground of cruelty. The aforesaid judgement also prescribes the mode as to how ‘cruelty’ has to be proved and also the manner in which it has to be proved so as to grant decree of divorce on ground of ‘cruelty’.

20. With the aid of aforesaid material, Court has now to examine, whether plaintiff-respondent was able to successfully establish cruelty on part of defendant- appellant and therefore, entitled to decree of divorce on the aforesaid ground.

21. Plaintiff-respondent filed suit for divorce on ground of cruelty as contemplated under section 13 (1)(i-a) of Act 1955. Burden to prove same was upon plaintiff-respondent himself. From perusal of plaint, it is apparent that reference is made to a solitary instance of cruelty and otherwise only allegations of cruelty have been made. According to plaintiff-appellant, thirteenth day function (terahi ceremony) of elder brother of father of plaintiff-respondent was schedule on 17.3.2002 as he expired on 10.3.2002. According to plaintiff-respondent, defendant appellant left for her marital home in the evening of 17.3.2002, which conduct does not commensurate with her status as daughter-in-law. Except for aforesaid solitary instance, no other instance of cruelty has been alleged in the plaint. Court below has returned a finding that departure of defendant-respondent from her marital home on 17.3.2002 is proved. However, Court below did not grant decree of divorce in favour of plaintiff-respondent. It is well settled by now that a solitary instance does not constitute cruelty by itself as has been held in G.V.N. Kameswara Rao Vs. G. Jabilli, 2002 (2) SCC 296. Paragraph 12 of judgement is relevant for the controversy in hand, which reads as under:

“12. The court has to come to a conclusion whether the acts committed by the counter-petitioner amount to cruelty, and it is to be assessed having regard to the status of the parties in social life, their customs, traditions and other similar circumstances. Having regard to the sanctity and importance of marriages in a community life, the court should consider whether the conduct of the counter-petitioner is such that it has become intolerable for the petitioner to suffer any longer and to live together is impossible, and then only the court can find that there is cruelty on the part of the counter-petitioner. This is to be judged not from a solitary incident, but on an overall consideration of all relevant circumstances.”

(Emphasis added)

22. Thus suit of plaintiff-appellant could be decreed on the ground of cruelty only as pleaded in plaint and also proved by plaintiff-appellant.

23. However, in the present case Court below has decreed suit on the ground of cruelty holding that defendant-respondent has initiated false criminal proceedings against plaintiff-respondent. It may be noted here that criminal proceedings were initiated by defendant-appellant one year after institution of divorce suit. The suit for divorce was filed in the year 2003 but decided vide judgement dated 20.12.2006. During this entire period, no amendment application was filed seeking amendment in plaint, whereby, facts regarding initiation of false criminal proceedings which have been held to cause commission of cruelty could be brought on record and therefore, could also be taken as a ground of divorce.

24. The question is whether in absence of any pleading in plaint, divorce can be granted on the ground of commission of cruelty because of initiation of false criminal proceedings by wife against husband. Law stands crystallized on the aforesaid issue. Reference in this regard be made to K. Srinivas Rao Vs. D.A. Deepa, 2013 (5) SCC 226, wherein it has been held that initiation of false criminal cases by wife against husband also amounts to commission of cruelty.

25. However, from record we find that during pendency of divorce suit, plaintiff-respondent, filed paper no. 31 Ga, which is list of documents dated 30.8.2006. By means of aforesaid, plaintiff-respondent filed following documents before Court below to establish commission of cruelty upon himself by defendant-appellant on aforesaid ground:

(I) One certified copy of order dated 9.5.2005 passed by Additional Session Judge New Delhi in case State Vs. Vikas U/s 498A, 406 and 34 IPC. (paper no. 32-Ga)

(ii) One certified copy of order dated 01.6.2005 passed by Member Secretary Delhi Legal Aid Cell, Patiala Court in case State Vs. Sumeri Lal Kanojia (paper no. 33-Ga)

(iii) One certified copy of order dated 15.6.2005 passed by The Court of Additional Session Judge New Delhi in granting Anticipary Bail to Sumeri Lal Kanojia and Smt. Prem Lata. (paper no. 34-Ga)

(iv) One certified copy of order dated 06.7.2005 passed by Additional Session Judge New Delhi in case State Vs. Vikas U/s 498A, 406 and 34 IPC. (paper no. 35-Ga)

(v) One certified copy of order dated 12.8.2005 passed by Additional Session Judge New Delhi in case State Vs. Vikas U/s 498 A, 406 and 34 IPC. (paper no. 36-Ga)

(vi) One certified copy of order dated 22.8.2005 passed by Additional Session Judge New Delhi in case State Vs. Vikas U/s 498A, 406 and 34 IPC. (paper no. 37-Ga)

(vii) One certified copy of F.I.R. case Crime No. 965 of 2004 dated 05.11.2004 lodged by Dr. Sarita defendant. (paper no. 38-Ga)

(viii) One certified copy of interim application moved by the defendant in case no. 928/1 of 2003 U/s 125 Cr.P.C. in court of A.C.M.M New Delhi. (paper no. 39-Ga)

26. From perusal of order sheet of Case No. 126 of 2003 (Dr. Vikas Kannaujia Vs. Smt. (Dr) Sarita) it is apparent that on 30.8.2006, Court below passed following order:

“** iqdkj djkbZ xbZ i{kdkj gkftj vk;s oknh dh vksj ls lwph 31x 31d }kjk 32zx rk 39x isij gkftj fd;s x;s rFkk lwph xokg 40x ds lkFk eq[; ijh{kk ‘kiFk i ih0MCyw01 Mk0 fodkl dUuksft;k 41d rFkk ih0MCyw02 Jh egsUnz flag dUuksft;k 42d nkf[ky gq,s ikoyh okLrs ftjg 2-11-06 dks is’k gksosA**

“Case was called out. Parties came up. On behalf of the plaintiff, paper nos. 32Ga to 39 Ga have been produced vide lists 31 Ga, 31 Ka. Along with the list of witnesses being 40 Ga, affidavit at examination-in-chief of P.W-1 Dr. Vikas Kannaujia being 41 ka and that of PW-2 Shri Mahendra Singh Kannaujia being 42Ka have been filed. File be produced on 02.11.2006 for cross-examination”

(English Translation by Court)

27. There is nothing in the order sheet of matrimonial case to indicate that documents filed by plaintiff-appellant vide list of documents (paper no. 31 Ga) were formally admitted in evidence.

28. Mr. Ravi Kiran Jain, learned Senior Counsel, has tried to support impugned judgement by placing reliance upon the judgement of Apex Court in K. Srinivas Vs. K. Sunita, 2014 (16) SCC 34. He has referred to paragraph 6 of the judgement, which reads as under:

“6. Another argument which has been articulated on behalf of the learned counsel for the respondent is that the filing of the criminal complaint has not been pleaded in the petition itself. As we see it, the criminal complaint was filed by the wife after filing of the husband’s divorce petition, and being subsequent events could have been looked into by the court. In any event, both the parties were fully aware of this facet of cruelty which was allegedly suffered by the husband. When evidence was led, as also when arguments were addressed, objection had not been raised on behalf of the respondent wife that this aspect of cruelty was beyond the pleadings. We are, therefore, not impressed by this argument raised on her behalf.” (Emphasis added)

29. On the strength of aforesaid observations made by Apex Court, learned Senior Counsel has tried to impress upon us, that in the present case also facts are similar and therefore, decree passed by Court below, cannot be faulted with on aforesaid ground.

30. Mr. Sujeet Kumar, learned counsel for defendant-appellant has vehemently opposed the submissions urged by Mr. Ravi Kiran Jain, learned Senior Counsel appearing for plaintiff-respondent. He submits that admittedly factum with regard to commission of cruelty by defendant-appellant upon plaintiff-respondent on account of initiation of false criminal case was not pleaded initially nor plaint was got amended subsequently. He further submits that pleadings decide course of evidence which is to be led by parties. Therefore, the rule “no amount of evidence can be looked into unless a fact is pleaded is applicable in this case.” He thus submits that documents filed by plaintiff-respondent in respect of criminal cases initiated by defendant-appellant could not be looked into by Court below. As such, impugned judgement passed by Court below on the basis of such documents is manifestly illegal. He further submits that there is nothing on record to show that counsel for plaintiff-appellant submitted before Court below to grant decree of divorce on the ground of initiation of false criminal cases by defendant appellant. Court below has itself concluded to grant divorce decree on the said ground. In the light of aforesaid facts, judgement rendered in K. Srinivas (Supra) cannot be of any help to plaintiff-respondent. Therefore, the decree passed by Court below is nonest as it is based upon facts not pleaded in plaint nor argued by counsel for plaintiff-appellant before Court below.

31. There is another aspect of matter. Documents relating to criminal cases lodged by defendant-appellant have been filed before Court below by plaintiff-respondent vide list of documents (paper no. 31 Ga). According to counsel for defendant-appellant, no reliance could be placed upon such documents by Court below unless they were admitted in evidence. There is nothing on record to show that these documents relating to criminal cases initiated by defendant-appellant were ever admitted in evidence. Consequently, the same could not be relied upon by Court below.

32. The Court is not unmindful of section 10 of Act 1984, which provides that Court may formulate its own procedure. For ready reference Section 10 of Act 1984 is reproduced herein under:

“10. Procedure generally.- (1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings [other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)] before a Family Court and for the purposes of the said provisions of the Code, Family Court shall be deemed to be a civil court and shall have all the powers of such court.

(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court.

(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other.”

33. Irrespective of aforesaid, there is nothing on record to indicate that documents relating to criminal proceedings, initiated by defendant-appellant were admitted in evidence as per mandate of Order XIII C.P.C. or under Sub-clause 3 of Section 10 of Act 1984. Thus, documents relating to criminal proceedings initiated by defendant-appellant did not form part of evidence adduced in suit for divorce filed by plaintiff-respondent.

34. A perusal of impugned judgement as well as order sheet of divorce suit will go to show that there is no recital indicating that documents filed vide list of documents (paper no. 31 Ga) are proposed to be admitted in evidence. As such, there was no opportunity before defendant-appellant for admission/denial of documents filed vide list of documents (paper no. 31 Ga). Learned counsel for defendant-appellant further submitted that on account of aforesaid no arguments for grant of divorce on account of initiation of false criminal cases was pressed by counsel for plaintiff-respondent. The impugned judgement does not contain any recital to establish to the contrary. Court below itself appears to have culled out this ground for granting decree of divorce, which is not permissible in law.

35. Learned Senior Counsel has tried to support judgement and decree passed by Court below on the ground that it is proved from record that wife has committed physical/mental cruelty upon plaintiff-respondent by denying him physical pleasure on account of her cold and indifferent attitude. To buttress his submission, he has invited attention of Court to pleadings in plaint, written statement as well as finding of Court below at page 73 of respondent’s paper book. He has also referred to paragraphs 18, 19, 20 and 21 of judgement in Parveen Mehta Vs. Inderjit Mehta, 2002 (5) SCC 706 For ready reference, paragraphs 18, 19, 20 and 21 of Praveen Mehta’s case (Supra) and page 73 of respondent’s paper book relied upon by learned Senior Counsel are reproduced herein below:

“18. Quoting with approval the following passage from the judgment in V. Bhagat v. D. Bhagat [(1994) 1 SCC 337] this Court observed therein: (SCC p. 347, para 16)

“16. 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.”

19. Clause (i-a) of sub-section (1) of Section 13 of the Act is comprehensive enough to include cases of physical as also mental cruelty. It was formerly thought that actual physical harm or reasonable apprehension of it was the prime ingredient of this matrimonial offence. That doctrine is now repudiated and the modern view has been that mental cruelty can cause even more grievous injury and create in the mind of the injured spouse reasonable apprehension that it will be harmful or unsafe to live with the other party. The principle that cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence is of greater cogency in cases falling under the head of mental cruelty. Thus mental cruelty has to be established from the facts (Mulla’s Hindu Law, 17th Edn., Vol. II, p. 91).

20. In the case in hand the foundation of the case of “cruelty” as a matrimonial offence is based on the allegations made by the husband that right from day one after marriage the wife was not prepared to cooperate with him in having sexual intercourse on account of which the marriage could not be consummated. When the husband offered to have the wife treated medically, she refused. As the condition of her health deteriorated she became irritating and unreasonable in her behaviour towards the husband. She misbehaved with his friends and relations. She even abused him, scolded him and caught hold of his shirt collar in the presence of elderly persons like Shri S.K. Jain. This Court in the case of Dr N.G. Dastane v.S. Dastane [(1975) 2 SCC 326 : AIR 1975 SC 1534] observed: (SCC p. 346, para 56)

“Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfilment.”

21. Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. 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 facts and circumstances of the case. 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. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.”

……….

**dzwjrk dHkh dHkh ,sls d`R;ks ls Hkh mRiUu gksrh gS ftudk dksbZ izR;{k vkSj ewfrZ :i ugh gksrk gS vkSj u gh lk{; ls LFkkfir fd;k tk ldrk gSA ysfdu budh vuqHkwfr vo’; dh tk ldrh gSa bl Js.kh dk rF; bl vfHkdFku es ‘kkfey gS fd foi{kh us ‘kknh ds rRdky ckn lqgkxjkr vkSj mlds ckn izkFkhZ ds lkFk nkEiR; thou ds vkuUn dh vuqHkwfr vkSj vuqHko ls izkFkhZ dks oafpr j[kk vkSj foi{kh us dksbZ lgHkkfxrk ugh dhA**”

“Cruelty sometimes arises from the acts which are not in tangible and physical state nor can they be established with evidence. But they can certainly be realised. This statement includes such a category of fact that the opposite party deprived the applicant of marital bliss, and did not ensure participation, on the wedding night immediately after the marriage and also on later occasion.”

(English Translation by Court)

36. In the opinion of Court, recital contained in paragraph 3 at page 73 is not a finding but a recital regarding explanation offered by Court to the pleading raised by plaintiff-respondent. Even otherwise also when paragraphs 4, 5 and 10 of plaint relied upon by learned Senior Counsel are examined, the same appear to be contradictory to paragraphs 3 and 6 of plaint itself. In other words there is no categorical pleading regarding denial of physical pleasure to plaintiff-appellant after marriage on account of non establishment of conjugal relationship between parties. Even in cross-examination of D.W.1, i.e. Dr. Sarita, we find that no specific question was put to her regarding aforesaid. Reliance placed upon written statement of defendant-appellant is also of no help as averments/allegations made in paragraphs 4, 5 and 10 of plaint were not admitted by defendant-appellant. Furthermore, suit filed by plaintiff-respondent has not been decreed on the ground of denial of physical pleasure. Therefore, once Court below has not taken this as a basis for passing decree of divorce, the impugned judgement and decree cannot be supported on this ground as judgement contains reasons in support of decree.

37. Mr. Ravi Kiran Jain, learned Senior Counsel has alternatively submitted that marriage of parties has broken down irretrievably as parties are living separately since 2.7.2004, therefore, decree of divorce granted by Court below should not be reversed.

38. The argument raised by learned Senior Counsel appears to be attractive at the first flush. However, upon deeper scrutiny, the same is devoid of substance.

39. The issue relating to irretrievable break down of marriage has been considered by a Division Bench of this Court in First Appeal No. 525 of 2006 (Smt. Kavita Sharma Vs. Neeraj Sharma) decided on 7.2.2018, wherein it has been observed in paragraph 28:-

“28. The above findings recorded by Court below could not be shown perverse or contrary to record. Having considered the fact that parties are living separately from decades, we are also of the view that marriage between two is irretrievable and has broken down completely. Irretrievable breakdown of marriage is not a ground for divorce under 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 have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the Court’s verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the Court’s decree. On the ground of irretrievable marriage, Courts have allowed decree of divorce and reference may be made to Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558 and Rishikesh Sharma Vs. Saroj Sharma, 2006(12) SCALE 282. It is also noteworthy that in Naveen Kohli v. Neelu Kohli (supra) Court made recommendation to Union of India that Act, 1955 be amended to incorporate irretrievable breakdown of marriage as a ground for grant of divorce. ”

40. Similarly this Court in First Appeal No. 792 of 2008 (Ashwani Kumar Kohli Vs. Smt. Anita) decided on 17.11.2016 has also considered this question and observed in paragraphs 7, 8, 10, 11, 12 and 13 as under:-

“7. Therefore, point for adjudication in this appeal is “whether a decree of reversal can be passed by granting divorce to the appellant on the ground which was not subject matter of adjudication before the Court below and is being raised for the first time in appeal”.

8. Under the provisions of Act, 1955 there is no ground like any “irretrievable breakdown of marriage”, justifying divorce. It is a doctrine laid down by judicial precedents, in particular, Supreme Court in exercise of powers under Article 142 of the Constitution has granted decree of divorce on the ground of irretrievable breakdown of marriage.

10. This aspect has been considered by this Court in Ram Babu Babeley Vs. Smt. Sandhya AIR 2006 (All) 12 2006 AWC 183 and it has laid down certain inferences from various authorities of Supreme Court, which read as under:-

“(i) The irretrievable break 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, (2002) 2 SCC 73 and V. Bhagat versus D. Bhagat, AIR 1994 SC 710.

(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 Dass Versus Kamla Devi, AIR 2001 SC 1709, Savitri Pandey v. prem Chand Pandey, (2002) 2 SCC 73 and Shyam Sunder Kohli v. Sushma Kohli, (2004) 7 SCC 747.

(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 versus Dr. SP Trivedi, (1993) 4 SCC 232.

(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 versus D. Bhagat, (supra), Ramesh Chander versus Savitri, (1995) 2 SCC 7, Ashok Hurra versus Rupa Bipin Zaveri, 1997(3) AWC 1843 (SC), 1997(3) A.W.C. 1843(SC) and A. Jayachandra versus Aneel Kaur, (2005) 2 SCC 22.

(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 judgment in the case of V. Bhagat and Mrs. D. Bhagat, AIR (supra) and at para 12 in the case of Shyam Sunder Kohli versus Sushma Kohli, (supra).”

11. The above authorities have been followed by this Court in ”Pradeep Kumar Vs. Smt. Vijay Lakshmi’ in 2015 (4) ALJ 667 wherein one of us (Hon’ble Sudhir Agarwal,J.) was a member of the Bench.

12. In Vishnu Dutt Sharma Vs. Manju Sharma, (2009) 6 SCC 379, it was held that under Section 13 of Act 1955 there is no ground of irretrievable breakdown of marriage for granting decree of divorce. Court said that it cannot add such a ground to Section 13, as that would amount to amendment of Act, which is the function of legislature. It also referred to some judgments of Supreme Court in which dissolution of marriage was allowed on the ground of irretrievable breakdown but held that those judgments do not lay down any precedent. Supreme Court very categorically observed as under:-

“If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Court. Hence, we do not find force in the submission of learned counsel for the appellant.”

13. The above view has been followed in Darshan Gupta Vs. Radhika Gupta (2013) 9 SCC 1. Similar view was expressed in ”Gurubux Singh Vs. Harminder Kaur’ (2010) 14 SCC 301. This Court also has followed the above view in Shailesh Kumari Vs. Amod Kumar Sachan 2016 (115) ALR 689.”

41. In the case in hand, we find that parties have not been living separately on account of their own free will. The record shows, it is plaintiff-respondent, who has refused to keep defendant-appellant with him. The defendant-appellant has herself not deserted plaintiff-respondent. In this view of the matter, the argument raised by learned counsel for plaintiff-respondent that there has been an irretrievable break down of marriage has no factual foundation. That apart this Court in Ashwani Kumar Kohli (supra) has held that divorce cannot be granted on aforesaid ground particularly when such a plea is raised by one party alone. In addition to aforesaid, decree of divorce was not prayed for on ground of irretrievable break down of marriage as the parties are alleged to have been living separately since 17.3.2002. The plaint was presented in the year 2003 whereas, divorce petition was finally decided vide judgement and decree dated 20.12.2006, passed by Principal Judge (Family Court), Meerut in Matrimonial Case No. 127 of 2003 (Rajesh Kumar Chaudhary Vs. Savita). For a period of fourteen long years, plaintiff-respondent kept quiet and now for the first time, this issue is being raised. We are of the considered opinion that in view of what has been stated above, plaintiff-respondent is estopped from raising this plea.

42. In view of discussions made herein above, appeal is liable to succeed. It is accordingly allowed. Judgement and decree dated 20.12.2006, passed by Principal Judge, Family Court, Meerut in Matrimonial Case No. 123 of 2003 (Dr. Vikas Kannaujia Vs. Smt. (Dr.) Sarita), are hereby set aside. The suit filed by plaintiff respondent shall stand dismissed. Parties to bear their own cost.

Order Date :- 22.8.2019

Arshad

 

 

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