Calcutta High Court Smt. Kajal Roy-vs-Prasanta Kr. Roy on 10 August, 2004
Equivalent citations:(2005) 2 CALLT 567 HC
Author: J Banerjee
Bench: M H Ansari, J Banerjee
Mahammad Habeeb Shams Ansari, J.
1. Instant appeal is field by defendant-wife aggrieved by the judgment and decree dated September 21, 2000 passed by the learned Additional District Judge, Howrah in Matrimonial Suit No. 37 of 1994. Thereby the suit for divorce filed on the ground of cruelty by the husband was decreed.
2. A perusal of the judgment under appeal would show that the petition under Section 13 was filed by the husband praying for a decree of divorce under Section 13 on the ground of cruelty and desertion. Learned trial Court found that the ground of desertion is not established and with regard to the ground of cruelty it was noticed that the same was founded on the ground that the wife left the matrimonial home at regular intervals and used to come back after 15/20 days and that she refused cohabitation with the husband and that finally on November 13, 1993 she left the matrimonial home with bag and baggage without the consent and knowledge of the petitioner and against the will of the husband’s mother. Learned trial Court found that the factum of cruelty pleaded has not been established but was of the view that the marital tie has deteriorated to such an extent that the parties cannot live together as husband and wife and, therefore, granted a decree of dissolution of marriage.
In coming to the aforesaid conclusion learned trial Court found that the wife admittedly left the matrimonial home along with her father on January 23, 1994 and on that very date lodged a complaint under Section 498A Indian Penal Code against her husband. Whereupon the husband was arrested by police and had to remain in jail custody for 14 days. She also lodged another complaint under Section 406 Indian Penal Code against her husband and after trial the accused were acquitted. Judgment in that case has been marked as Ext.2. The judgment in GR 197/1994 being the case under Section 498A Indian Penal Code was pronounced on April 6, 2004 i.e. after the date of decree under appeal and for that purpose an application being CAN 5626 of 2004 has been field for receiving the said judgment as additional evidence in this appeal. We shall consider this application a little later. Suffice it to state that appellant has not filed any affidavit-in-opposition but his learned counsel made oral submission.
3. It is the correctness of the conclusions arrived at by the learned trial Court and based whereon the decree of divorce was granted that is the subject matter of the instant appeal.
4. It is the contention of Mr. Tapan Mukherjee, learned counsel for the appellant-wife that the husband having failed to establish the acts of cruelty pleaded ought not to have been granted the decree of divorce merely because complaints under Sections 406 and 498A Indian Penal Code had been filed by the wife. It was further contended that it is the appellant-wife that was the victim of immense torture. That the wife had to go with her father for medical treatment and when she returned to her matrimonial home on January 22, 1994 along with her father to live in the matrimonial home the husband and his family members did not allow her to live at the house and thereafter when the father returned on January 23, 1994 he came to know that the wife was assaulted by the husband and his family members whereupon a complaint was filed by the father of the wife under Section 498A and another complaint filed by the wife under Section 406 Indian Penal Code with respect to the wedding gifts and ornaments. It was contended that pursuing a legal remedy for the protection of life limb and property cannot constitute cruelty. Reliance was placed upon the judgment in Smt Bina Rani Banik v. Pradip Kr. Banik, AIR 1999 Gauhati 139. It was further contended that it is the acts of the husband that led the wife to take such action and, therefore, the husband cannot take advantage of his own wrong. Reliance was placed upon the judgments in Savitri Pandey v. Prem Chandra Pandey, , and Smt. Kakali Das (Ghosh) v. Dr. Asish Kumar Das, (2003)3 CLT 60.
5. Mr. Buddhadev Ghoshal appearing along with Mr. Dipanjan Sinha Roy, learned counsel for the respondent-husband at the very outset submitted that the decree of divorce granted by the learned Trial Court can be sustained on the grounds pleaded in the petition.
Relying upon the judgments in Postgraduate Institute of Medical Education & Research and Anr. v. A.P. Wasan and Ors., ; Parma Lal v. State of Bombay, ;
Koksingh v. Smt. Deokabari, and Virdhachalam Pillai v. Chaldean Bank Ltd., Trichur and Anr., , it was
contended that without filing any cross-appeal or cross-objection the respondent in the appeal is entitled to canvass the correctness of the findings against him in order to sustain the decree that has been passed against the appellant.
6. Having perused the judgments cited by the learned counsel for the respondent-husband, we are of the view that if a party who could have filed a cross-objection under Order 41 Rule 22 Code of Civil Procedure but has not done so is entitled to canvass the correctness of the findings that have gone against him. Further, Appellate Court is empowered under Order 41 Rule 33 Code of Civil Procedure not only to give or refuse relief to the appellant by allowing or dismissing the appeal but is also empowered to give such relief to the respondent as “the case may require”. Accordingly the plea of the respondent herein is sustained. It is open to the respondent to canvass before us the correctness of the findings that have gone against him in the judgment and decree under appeal.
7. Having held as above let us consider whether the grounds pleaded in the petition for divorce stand established by the evidence on record. Before we take up for consideration the rival contentions, a few observations based on judicial precedents need to be noticed.
8. Cruelty is now a ground of divorce. It may be either physical or mental cruelty on the establishment of which an aggrieved spouse is entitled to divorce. Physical cruelty consists of acts of inflicting of bodily injury or giving cause for apprehension of such injury. Mental cruelty consists of conduct which causes mental or emotional suffering. After the amendment by the Hindu Marriage Laws (Amending) Act of 1976 cruelty s a ground of divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 is construed to be an act or omission or conduct of such type that one spouse cannot reasonably be expected to live with the other. Cruelty may consist of acts which are dangerous to life, limb or heath. It may be manifested by such acts to have inflicted bodily injury or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. There may be instances of cruelty by an unintentional but inexcusable conduct of any party. The intention/motive is not a necessary element or ingredient of cruelty. It is the act or conduct or omission which will constitute cruelty. A single act of physical cruelty may itself amount to cruelty. A series of small acts of violence or threats may cumulatively amount to cruelty. In either case of physical cruelty or mental cruelty it is not necessary that such act or conduct be that of the spouse or at the instance of one spouse or at the instigation of one spouse against the other it may emanate from others and the omission of spouse in protecting the other spouse from such act or conduct may itself constitute cruelty in given case.
9. ‘Mental cruelty’ has been given a wide meaning and has been construed as that conduct which inflicts mental pain and suffering upon the spouse making it impossible for him/her to live with the offending spouse. It must be of such nature that the parties to the marriage cannot reasonably be expected to live together nor the parties can reasonably be asked to endure such conduct. In coming to the conclusion as to whether the alleged acts or omissions constitute cruelty, Court has to keep in mind the social status, educational level of the parties as also the society they move in. This is for the reason that what may amount to cruelty in a given case may not be so in another. In so far as mental cruelty is concerned it is no longer necessary to establish that the act or omission or conduct which constitutes cruelty has caused any sort of apprehension in the mind of the aggrieved spouse that it will be harmful or injurious for him/her to live with the other. Judicial precedents under the unamended Act, therefore, laid emphasis on the reasonable apprehension aspect of cruelty and not so much on the act or omission or conduct itself.
10. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. Nor it can be decided on the basis of the sensitivity of the petitioner. Simple trivialities which can be described as the reasonable wear and tear or married life have to be ignored. Courts will have regard only to weighty and grave incidents. Where the case is of accusations and allegations, counter-accusations and counter-allegations the Court is to have regard to the context in which such allegations or counter-allegations have been made. If the conduct complained of itself is bad enough or per se unlawful or illegal then the impact or injurious effect thereof on the other spouse need not be enquired into or considered and any such conduct would constitute cruelty.
11. The Supreme Court in Shobha Rani v. Madhukar Reddi, [a case arising under Section 13(1)(ia) of the Act] has sounded a note of caution when it observed thus;
“…We, the Judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents….”
12. The general rule governing pleadings is that the facts and reliefs must be set out in the pleadings. The facts need to be stated succinctly based on which the relief/s is/are sought. This is because the Courts grant relief founded on pleadings. The principle being that the other party is not taken by surprise. If the parties did not know that a particular matter is in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, granting relief on matters not pleaded would introduce considerations of prejudice.
13. A party in matrimonial proceedings may not be allowed to make out a case on the basis of evidence for which he/she has laid no foundation in the pleadings. The general principle being that any amount of evidence would be of little avail if the same has not been less set up or started in the pleadings.
14. However, on the basis of pleadings and other admitted material divorce can be granted if there are some extraordinary features to warrant grant of divorce. It was so held by the Supreme Court in V. Bhagat v. D. Bhagat, wherein it was observed that
“There must be really some extraordinary features to warrant grant of divorce on the basis of pleadings (and other admitted material) without a full trial. Irretrievable break-down of the marriage is not a ground by itself. But while scrutinizing the evidence on record to determine whether the ground(s) alleged is made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind.”
15. It is the contention of Mr. Buddhadev Ghosal, learned counsel for the respondent that the grounds of physical and mental cruelty pleaded in the plaint stand established by the evidence on record and, therefore the conclusion arrived at by the learned trial Court that same are not established is erroneous. On the other hand, learned counsel for the appellant contended that none of the grounds alleged have been established. It was further submitted that the evidence on the side of the respondent is of a general nature. It is the respondent-husband that has inflicted torture upon the wife and is keen to get rid of the wife as can be seen from his attitude in asking the father-in-law to take back his daughter for ever.
16. The facts on which the petition filed for grant of divorce under Section 13 of the Hindu Marriage Act, 1955 is inter alia that the marriage between the parties was performed on August 2, 1992 according to Hindu rites and customs. According to the husband within a very short time thereafter the husband was ill-treated by the wife and her father and brother. He used to be pressurised to desert his old widowed mother and unmarried sister to live as ‘Gharjamai’. Allegations have been made in the petition with regard to acts of mental as also act of physical cruelty which were inflicted by the wife upon the husband but was not disclosed to his family members. Allegations was made that the wife was in the habit of leaving the matrimonial home at regular intervals and used to come back after 15/20 days from her father’s house or from any other place not known to the husband and did not allow the husband cohabitation with her. The husband was made to sleep on the floor. The specific instance cited in the petition for divorce is to be found in paragraph 8 wherein it is alleged that on November 13, 1993 on ‘Kalipuja’ day wife’s father came to the matrimonial home all on a sudden and took away his daughter with bag and baggages, same was in total defiance of the husband’s mother and even without the husband’s consent and knowledge. In paragraph 10, it was alleged that on January 22, 1994 the wife returned along with her father and the father returned after about one hour stay stating that he would come back and take away his daughter. The further allegation is to the effect that;
“…At that time, your petitioner most modestly proposed to the father of the respondent for arranging permanent severance of their conjugal life through the Court of law peacefully instead of committing such wrongful acts perpetually inflicting mental injury to him and to his aged widow mother….”
17. It is alleged that the father became furious and left making threats and he returned on January 23, 1994 along with police officials of Bantra Police Station and on the directions of the father the wife took her remaining belongings and ornaments. The husband and his mother were taken to police station and thereafter the S.I. of Bantra P.S. after hearing both the parties allowed the husband and mother to leave. An allegation as to desertion by the wife has been made in paragraph 13 of the petition. It is stated that on January 23, 1994 the wife left the matrimonial home with all her belongings.
18. The ground of desertion as pleaded for grant of decree of divorce is not maintainable in the case on hand as will be evident from the provisions of Section 13(1)(ib) wherein it is laid down that decree of divorce on the ground of desertion can be granted if the other party has deserted the petitioner for a period not less than two years immediately preceding the presentation of the petition. It is clear that no suit can be decreed on the ground of desertion If the same is filed as in the case on hand within 2 years from the date of alleged desertion. In the case on hand the plea of desertion is founded on the ground that wife left the matrimonial home on January 23, 1994. The suit is filed within a month thereof i.e. on February 7, 1994.
19. As regards the grounds of cruelty alleged in the petition suffice it to state here that the incidents of cruelty alleged have not been succinctly stated in the petition except that the wife left the matrimonial home on November 13, 1993 and returned on January 22, 1994 when an altercation took place between the husband and father of the wife and another incident of January 23, 1994 when the father of the wife is said to have come with police personnel and taken his daughter away with him, the husband and mother being called to the police station. The other allegations in the petition are vague without any specific particulars having been furnished as to the date of their occurrence. The evidence of the husband as PW1 is on similar lines. He has spoken of physical assault by the wife and also that she did not share the bed with him and he had to sleep on the floor. No such particulars with date as to when said incident occurred has been stated in the plaint. Even in his deposition husband as PW1 has not furnished particulars with regard to alleged assault by the wife upon him nor did he furnish the dates from when she did not allow him to share the bed. It is only in cross-examination that the husband stated that refusal to cohabit on the part of his wife began three months after his marriage in the year 1992. He, however, admitted that from the date of his marriage till January 22, 1994 he lived in the same room with his wife and further admitted that he never informed any person regarding the refusal by the wife to cohabitation. We are, therefore, inclined to agree with the learned Trial Court that the grounds of cruelty as pleaded do not stand established.
20. As noticed supra, the learned Trial Court that the parties cannot live together as husband and wife as the ground of cruelty is established by the criminal cases filed by the wife and detention of husband in jail custody for 14 days. This conclusion by learned Trial Court is founded on the ground of complaints filed under Section 498A and 406 Indian Penal Code. The case under Section 406 Indian Penal Code having ended in acquittal.
21. It was contended by learned counsel for appellant relying upon Savitri Pandey (supra) the marriage between the parts that as the marriage between them has broken down no useful purpose would be served to keep it alive. The sanctity of the marriage cannot be left at the whims of one of annoying spouses. It was further contended that irretrievable break down of marriage is not a ground by itself to dissolve it as held by the Supreme Court in Bhagat v. Bhagat, .
22. From the evidence on record it is apparent that the instant suit was filed after the complaint was made against the husband under Sections 406 and 498A Indian Penal Code. During the pendency of the proceedings the criminal case under Section 406 Indian Penal Code was decided on April 28, 2000 and Ext.2 is the certified copy of the judgment in C.C. No. 281C/1994. The judgment in the criminal case under Section 498A Indian Penal Code had not, till then, been pronounced. Subsequently, the judgment has been pronounced in that case also and as noticed earlier an application has been filed being CAN 5626 of 2004 to receive the judgment as additional evidence in this appeal. The only submission in opposition made by the learned counsel for the appellant is that the complaint under Section 498A Indian Penal Code was made by the father of the appellant and not by the appellant herself. It was further submitted that the allegations based on which the complaint was made is not without any basis. In any event, it was submitted that, the acquittal in that case does not warrant the grant of divorce as prayed for by the respondent. As in our view, the learned Trial Court granted decree of divorce by the judgment under appeal mainly on the ground that the appellant had lodged the complaints under Sections 406 and 498A Indian Penal Code and after noticing that the respondent-husband was arrested by police and had to remain in jail custody for 14 days in connection with the criminal case supposed by the wife, it was concluded that it was not possible for the parties to live together. In order to examine the correctness of the conclusion we are of the view that the judgment in criminal case under Section 498A Indian Penal Code would be relevant for complete and proper disposal of this appeal.
23. Accordingly application being CAN 5626 of 2004 is allowed. Let the certified copy of the judgment in that case be assigned appropriate exhibit number.
24. In Smt. Nivedita Banerjee v. Sanal Kumar Banerjee, 1999(2) CHN 625, Division Bench considered the contention with respect to a complaint