HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Court No. – 32 Judgment reserved

Case :- FIRST APPEAL No. – 275 of 2015

Appellant :- Smt. Nisha Soni

Respondent :- Mukesh Soni

Counsel for Appellant :- K.P. Tiwari

Counsel for Respondent :- Hare Krishna Tripathi

Hon’ble Shashi Kant Gupta,J.

Hon’ble Pradeep Kumar Srivastava,J.

(Delivered by Hon’ble Pradeep Kumar Srivastava, J.)

1. This appeal has been preferred against the judgment and decree dated 04.04.2015, passed by Principal Judge, Family Court, Jhansi, in Suit No. 177 of 2013 (Mukesh Soni vs. Smt. Nisha Soni), under Section 13(1)(a) of the Hindu Marriage Act, whereby the divorce petition of the plaintiff-respondent has been decreed dissolving the marriage between the parties dated 18.06.2005.

2. The impugned judgment and decree has been challenged on the ground that the learned court below has passed the judgment on the basis of surmises and conjectures, hence, the same is perverse. The grounds of divorce has been made out beyond the pleadings and the learned court below has committed illegality by shifting burden of proof on the defendant-appellant. No cruelty was proved by the plaintiff-respondent. The learned court below has also not considered the pendency of the suit filed under Section 9 of the Hindu Marriage Act by the defendant-appellant. The judgment is contrary to law, hence, the impugned judgment and decree is liable to be set aside.

3. A divorce petition was filed by the plaintiff-respondent Mukesh Soni before the learned court below, under Section 13(1)(i-b) of the Hindu Marriage Act on the ground of desertion stating that the marriage between the parties took place on 18.06.2005 according to Hindu rites, rituals and traditions. After marriage, both plaintiff and defendant started living and performing their conjugal obligations as husband and wife in the house of plaintiff in Jhansi. The plaintiff did not give any opportunity to the defendant for any kind of complaint. The plaintiff was unemployed at the time of marriage. His father was not alive. The defendant used to live with his mother and always created trouble for her. Subsequently, the plaintiff got employment in Indian Railways and was posted in Brahmpur, Orissa, where he started living and doing his services. Time to time, he used to come to his home to meet his mother and his wife in Jhansi. The defendant created so much of trouble to his mother that she became agonized and ultimately expired on 10.12.2012. Later on the defendant went to her parental house with all her jewelery and gifts which were given to her in the marriage. The plaintiff made complaints to her parents but they did not care and started quarreling with him taking the side of his wife. The plaintiff took the defendant to Jhansi and after some days, he took her to Orissa, but there she insisted to live with her parents in Gwalior. Even after three years of marriage, no child was born to her. The plaintiff provided her all possible treatment in Brahampur, Orissa and Jhansi. Thereafter, the defendant insisted to go to her parental house on the ground that she is not getting proper treatment. When the plaintiff prevented her, she stopped doing domestic work and became very quarrelsome. She also committed mar-peet with him. Then the plaintiff agreed to send the defendant to her parental house.

4. In March, 2009, the plaintiff took his wife to Brahmpur, Orissa from Jhansi and provided her suitable treatment. The doctors advised that for giving birth to a child, she may try the test tube treatment. The plaintiff has also given his ATM Card to his wife in Orissa saying that he will not be able to live with her and whenever she required, she may draw money by ATM and whenever, he will come to her, he will provide more money for her expenses. Thereafter on information given by him to her parents, they came and took her to Jhansi, and from Jhansi to Gwalior. In December, 2010, the plaintiff came to Jhansi and called the defendant to Jhansi where he lived with her till December, 2010. After completing the investigation, the doctor suggested for test tube baby treatment and the plaintiff started her treatment in December, 2010 in Gwalior and since then they did not have any physical relations nor the defendant permitted him to make physical relationship. In February, 2011, test tube treatment took place but in April, 2011, a miscarriage occurred. The plaintiff bore all the expenses of treatment and gave all care and services to her. There is no physical relationship from the last two years between the parties. The defendant and her family did not invite him in the marriage of his brother-in-law Anil nor gave any information about his marriage. The plaintiff got reservation on 03.02.2012 to 16.02.2012 and went to bring the defendant back. He again got reservation on 29.06.2012 to 05.07.2012 but the defendant and her family members insulted him and sent him back. Again, the plaintiff went with some relatives on 14.02.2013 to bring her back from Gwalior, but she refused to live with him. the cause of action arose on 14.02.2013 for the last time when she refused to live with him in Jhansi as both the parties live together in Jhansi last time before presentation of this petition.

5. The defendant-appellant filed her written statement in which she has admitted marriage and has also admitted that both the parties were living as husband and wife in Jhansi. She has also admitted that at the time of marriage, the plaintiff was unemployed and his father had already expired before his marriage. she has also admitted that she was living with the mother of the plaintiff. Denying other allegations of the plaint, she has stated that after marriage she lived with her in-laws and thereafter she came back to her parents. When second time she went to her in-laws, the plaintiff and his family members started making complaints about less dowry and started harassing her alleging that she did not bring enough dowry. They also started pressurizing her to bring money from her parents.

6. After marriage, on coming to her matrimonial home, she came to know that the plaintiff is a patient of epilepsy and this fact was concealed to her. She never gave trouble to his mother and lived with her. It is false that she came to her parents with all ornaments and gifts which were given to her in the marriage. She has never been quarrel some. The plaintiff was unemployed and he used to say that for getting job he needs Rs. 2 lakhs and, therefore, on the request of the defendant, her father made arrangement of Rs. 2 lakhs and gave the same to the plaintiff and thereafter, the plaintiff got the employment in Railways. He started living in Orissa, where he was posted. The defendant insisted to keep her in Orissa but he avoided and being enough pressurized, once or twice he took her to Orissa and after some days he left her again to Jhansi in her matrimonial home, where the defendant was living with her mother-in-law and his brothers who were regularly harassing her. They forced her to leave the matrimonial house in April, 2012. Since then, she is living with her parents in Gwalior. She tried on phone that the plaintiff may take her to Orissa and live with her there but the plaintiff avoided it and she was forced to live with her parents. It is wrong to say that in respect of no child born to her, she was treated in Brahmpur, Orissa and Jhansi. It is also incorrect that in February, 2011, a test tube treatment was conducted on her and a miscarriage took place in April 2011 and thereafter the plaintiff provided necessary treatment on his expenses.

7. On the contrary, the plaintiff used to come to defendant in Gwalior and used to give all kind of promise and allurement that he will take her to Orissa. When the defendant was pregnant in March and April, 2011, plaintiff came to her and despite being prevented by her, he made violent physical relations by way of sexual intercourse and because of that the miscarriage took place. She was treated by her parents and no financial or otherwise assistance was rendered to her by the plaintiff. The plaintiff was invited in the marriage of her younger brother and sister but he did not come. The defendant is slightly handicapped by her legs and it was well known to the plaintiff and his family but being unemployed, there was no possibility of his marriage. He, therefore, married with the defendant. After he got job in the Railways and started getting good salary, he tried to get rid of defendant in order to solemnize second marriage. No cause of action arose in this matter and the suit is liable to be dismissed.

8. In support of allegations, the parties have given oral as well as documentary evidences. The plaintiff Mukesh Soni has examined himself as PW-1. Smt. Nisha Soni had examined herself as DW-1 and Suresh Soni, father of defendant, had been examined as DW-2. Documents relating to medical treatment of defendant and certain railway tickets have been also filed.

9. After taking into consideration the evidence given by the parties, the learned court below decreed the petition of the plaintiff for divorce and granted divorce between the parties in respect of their marriage dated 18.06.2005.

10. Aggrieved by the the impugned judgment and decree, the defendant-appellant Smt. Nisha Soni has filed the present appeal.

11. It has been pointed out from the side of appellant that the petition for divorce was filed by the plaintiff under Section 13(1)(i-b) of the Hindu Marriage Act. Section 13(1)((i-b) of the Hindu Marriage Act provides desertion a ground for divorce where other party:

Section 13 (1)(i-b) : “has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition;

Explanation: In this sub-section the expression ‘desertion’ means the desertion of petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes wilful neglect of the petitioner by the other party to the marriage….”

12. Under the above provision, it is required that from the date of presentation of the petition for divorce on the ground of desertion, it is required that the plaintiff was deserted by the defendant for a continuous period of not less than 2 years immediately proceeding the presentation of the petition. Therefore, the crux of the matter is to determine on what date the plaintiff has alleged himself to be deserted by the defendant.

13. In Savitri Pandey vs Prem Chandra Pandey, AIR 2002 SC 591, the supreme court observed that word desertion, for the purpose of seeking divorce under the Hindu Marriage Act, means the intentional permanent abandonment of one spouse by the other without consent and reasonable cause. In other words , it is a total repudiation of the obligations of marriage. In Adhyatma Bhattar Alwar vs Adhyatma Bhattar Sri Devi, AIR 2002 SC 88, it was laid down that for a successful claim of divorce on the ground of desertion, the fact of separation with element of permanence during entire statutory period of two years before presentation of petition must be proved. In Malathi Ravi MD vs B. V. Ravi MD, (2014) 7 SCC 640, explaining the requirement of proof of necessary facts for a claim of divorce based on the ground of desertion, the supreme court has laid down that the fact of separation for two years immediately before presentation of suit with intention to permanently end the co-habitation and absence of consent or conduct affording reasonable cause to leave matrimonial home of other party, must be established.

14. From perusal of para 8 of the plaint it appears that the plaintiff has alleged that in February, 2011, a test tube treatment was conducted and in April 2011, a miscarriage took place and thereafter the plaintiff provided all treatment on his own expense and indulged in all kind of care and services to her. This shows that after April, 2011 on some date which has not been specifically stated in the plaint, the plaintiff might have been deserted. As per his own admission, the test tube treatment was conducted by which she got pregnant and then in April, 2011 a miscarriage took place and thereafter she was put to treatment and the same was provided by the plaintiff on his own expenses. Naturally, there was no opportunity of desertion till the defendant was under treatment, care and service of plaintiff after miscarriage. From the treatment paper available on the lower court record, in the form of Discharge-Ticket from 11.4.2011 to 25.4.2011, it appears that the defendant was admitted in Kalyan Memoeial Hospital, Gwalior. Plaintiff has himself pleaded and admitted that during treatment for miscarriage and thereafter also, he was there to look after his wife and rendered expenses and post-care service. Including the post treatment care and service as alleged by the plaintiff himself, the desertion, if any, must have started in May, 2011. Prior to that period or date, the allegation that she was living in Gwalior and she was not living with plaintiff becomes insignificant, as being condoned by the conduct of plaintiff himself. This also shows that there was not only reasonable cause but also consent of the plaintiff for the wife to live in Gwalior as she was under treatment for test tube baby and miscarriage thereof.

15. Now believing on that what has been stated in the plaint, it was only in the last of April, 2011 or shortly after that month, he was deserted by the defendant. From the perusal of the plaint, it appears that the plaint was filed by the plaintiff on 29.03.2013. It means that the petition was filed before completion of 2 years. The two years period of desertion in any case could be completed only in the end of April, 2013 or in May, 2013, whereas the petition has been filed in March, 2013. Therefore, the first requirement of two years desertion was not complete at the time of presentation of plaint. This fact has been ignored by the learned court below. On the contrary from the perusal of the whole judgment it is difficult to find any finding on the date when the plaintiff was deserted by the defendant or even a finding on desertion as required under Section 13 of the Hindu Marriage Act. It appears from the impugned judgment that the trial court has concluded that the plaintiff had provided his ATM card to the defendant which she operated from 05.01.2011 to 27.03.2012. It also rules out the possibility that there was two years desertion from the side of the defendant. Surprisingly, even then, learned court below has made observation that the plaintiff in his affidavit has stated that from December, 2010, the defendant is living in her parental house and he had no physical relationship with her.

16. Beyond pleading, the learned court below has discussed the cruelty committed by the defendant whereas no such ground was alleged in the plaint nor on this ground the divorce petition was filed. More surprisingly, the learned court below has decreed the divorce petition under Section 13(1)(i-a) of the Hindu Marriage Act on the ground of cruelty. While granting divorce on the ground of cruelty, the learned court below has gone beyond the pleading and has ignored that the plaintiff-respondent has not sought divorce on the basis of cruelty but only on the basis of desertion. In this process, burden of proof has been shifted by the court below erroneously on defendant, whereas, under law the plaintiff has to bear this burden and stand on his own legs. But except himself the plaintiff has examined no other witness in his support. Even for the sake of argument, if it is assumed that there is some element of pleading or evidence of cruelty, the learned court below should have taken care of the UP Amendment in Section 13 of the Hindu Marriage Act by which (1-a) has been substituted as follows:

“(1a) has persistently or repeatedly treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party;.”

17. Cruelty has not been defined in the Hindu Marriage Act. In Mayadevi vs. Jagdish Prasad, AIR 2007 SC 1426, the Supreme Court has remarked that the expression ‘cruelty’ in Section 13 has been used in relation to human conduct or human behaviour in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the inquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the 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 inquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.

18. In Anjula Verma vs. Sudhir Verma, AIR 2002 SC 1447, the Supreme Court has remarked that the foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. In Ravi Kumar vs Julmidevi, (2010) 4 SCC 476, cruelty was interpreted to mean absence of mutual respect and understanding between spouses which embitters relationship. As held in Vishwanath Agrwal vs Sarla Vishwanath Agrwal, (2012) 7 SCC 288, it always depends on social strata or milieu to which parties belong, their ways of life, relationship, temperaments and emotions that are conditioned by their social status. It was pointed out in K S Sriniwas Rao vs D. A. Deepa, (2013) 5 SCC 226, that it is evident where one spouse so treats other and manifests such feeling which causes reasonable apprehension in the mind of other that it would be harmful or injurious to reside with other spouse. In Gurubux Singh vs Harminder Kaur, AIR 2011 SC 114, it was opined that isolated frictions on some occasion does not amount to cruelty. All quarrels must be weighed in determining cruelty in each particular case, keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hyper-sensitive approach would be counter-productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideals one will probably have no occasion to go to Matrimonial Court.

19. In the impugned judgment, we find that no finding has been recorded by the learned court below to the effect that there was cruelty on the part of appellant towards the husband of a kind to cause a reasonable apprehension in the mind of the petitioner that it was harmful or injurious for the petitioner to live with his wife.

20. In U Sree vs U sriniwas, (2013) 2 SCC 114, it was held that it is not open for the learned court below to grant divorce on a ground which was not taken in the petition. Where there is no pleading or prayer made for divorce on ground of desertion but conclusion as to desertion arrived at by court below and granting divorce is erroneous. On the same analogy, we are of the view that where divorce has been sought on the ground of desertion only, the court cannot grant divorce on the ground of cruelty. Moreover, from the side of appellant, a copy of the petition under Section 9 of the Hindu Marriage Act seeking relief of Restitution of Conjugal Rights was also filed but the same has been ignored by the court below.

21. The learned court below has not applied legal procedure while passing the impugned judgment. No issue has been framed nor point for determination has been constructed. Section 10 of the Family Court Act provides that the provisions of Civil Procedure Code shall apply to all suits and proceedings before the Family Court. Section 21 of the Hindu Marriage Act also provides that proceedings under the Act shall be regulated by the Code of Civil Procedure. Moreover, section 17 of the Family Court Act incorporates that judgment of a family court shall contain a concise statement of the case, the point for determination, the decision thereon and the reasons for such decision. Order XIV of the Code of Civil Procedure provides for framing of issues after pleadings have been submitted by the parties so that to pinpoint the dispute between them and to enable them to adduce their evidence on those points. From the perusal of the entire order-sheet and judgment, we find that the learned Family Court has not framed issues and has fixed the case for evidence on the date the defendant filed her WS. No point for determination has been formulated in the impugned judgment.

22. There is yet another illegality in the impugned judgement. Section 9 of the Family Court Act provides that the court shall make all endeavor for settlement between the parties and also persuade them for such settlement. Section 23(2) of the Hindu Marriage Act also obligates the court of first instance for re-conciliation process. In Balvinder Kaur vs Hardeep Singh, (1997) 11 SCC 701 and Jagraj Singh vs Birpal Kaur, (2007) 2 Scc 564, it has been held that a decree without undergoing re-conciliation process is not sustainable in law. We find that the learned court below has omitted to make any effort for re-conciliation process, and as such the impugned judgment is illegal on account of non-observance of mandatory procedure.

23. On the basis of above discussions, we find that the impugned judgment is illegal and perverse and that cannot be sustained. Hence, the appeal is allowed and the impugned judgment and decree dated 04.04.2015 to the extent of granting divorce between the parties is set aside.

24. Office is directed to transmit the original record of this case along with copy of this order to the court concerned, for compliance.

Order Date :- 05.04.2019

sailesh