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Sri Sanjay Kr Jha vs Smt Nilam Jha on 23 September, 2019

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GAHC010235842017

THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Mat.App. 26/2017

1:SRI SANJAY KR JHA
S/O LATE MARKENDU JHA, R/O BHAGABAT DHAM, JYOTIKUCHI, PS
DISPUR, DIST. KAMRUP M, ASSAM

VERSUS

1:SMT NILAM JHA
C/O SRI DIGAMBAR JHA, CIT POLICE RESERVE QUARTER, BLOCK-0-03,
PALTAN BAZAR, GUWAHATI, DIST. KAMRUP M, ASSAM

Advocate for the Petitioner : MS.N CHOUDHURY

Advocate for the Respondent : MS. A DEVI, (LEGAL AID COUNSEL)

BEFORE
HONOURABLE THE CHIEF JUSTICE (ACTING)
HONOURABLE MR. JUSTICE MANISH CHOUDHURY

JUDGMENT

Date : 23-09-2019

(Manish Choudhury, J)

Heard Ms. B. Bhuyan, learned counsel for the appellant. Also heard Ms. A. Devi,
learned Legal Aid counsel, appearing for the sole respondent.

2. This appeal, under Section 28 of the Hindu Marriage Act, 1955 read with Section 19 of
the Family Courts Act, 1984, is presented against the judgment and order dated 03.11.2016
passed by the learned Principal Judge, Family Court, Kamrup (M), Guwahati in F.C.(Civil) Case
No. 167/2012. By the said judgment and order dated 03.11.2016, the petition filed by the
appellant as the petitioner, seeking dissolution of the marriage under Section 13(1)(ia) of the
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SectionHindu Marriage Act, 1955 (‘the Act’, in short) against the respondent was dismissed on
contest.

3. The undisputed facts that have emerged may be stated briefly. The marriage between
the appellant and the respondent was solemnized on 04.05.2001 according to Hindu rites and
rituals. Out of the said wedlock, two female children were born – one on 13.03.2002 and the
other on 23.12.2004. The appellant presented the petition before the learned Family Court on
17.03.2012.

4. In the petition, the appellant, an employee in the Assam Police since the year 1998,
stated that after the marriage, the couple started to reside at thehouse of the appellant
wherein the appellant’s mother, elder brother and sister-in-law also used to reside. Though
both the appellant and the respondent originally hailed from the State of Bihar, the appellant’s
family is permanently settled at Guwahati, Assam. The case projected by the appellant was
that the appellant was pressurized to marry the respondent on the insistence of one Sri
Digambar Jha (D.W.2) and Sri G.M. Srivastav, who served as a Director General of Police
(DGP), Assam. The appellant was compelled to tie the nuptial knotashe and his entire family
were threatened and mentally tortured by the high-ranking police officials. The initial period
subsequent to the marriage passed off peacefully but gradually the respondent started
treating the appellant with mental cruelty by refusing to co-operate with him and his family
members. At one point of time, the appellant due to duress exerted by the respondent, had
to stay separately from his mother and his elder brother. When that too did not bring any
succour, the appellant persuaded the respondent to agree to stay together with his family
members again. When the second child was born, the mother of the appellant took all care of
the child and the respondent at the time of delivery. The respondent was found to be a short
tempered and selfish woman. As she used to visit the residences of D.W.2 and the DGP
frequently, without giving any reason, there used to occur frequent altercation between them.
The respondent used to disobey the appellant as well as the elder members of his family and
she often used to threaten them that cases under Section 498A of the Indian Penal Code
(I.P.C.) would be filed against them and she would get them arrested which had caused the
family tremendous mental stress. In the year 2007, the respondent once without any
reasonable cause, left the matrimonial home after filing a false case at Odalbakra Police
Outpost and started to reside in her parents’ house in Bihar. The appellant stated that after
persuasion, an amicable settlement was arrived at, in a meeting held by the Panchayat at
Village – Jajuar, Police Station – Katra, District – Mujaffarpur, Bihar, on 08.12.2008 and the
respondent had agreed to come back to Guwahati to reside with the appellant and his family
members after signing an agreement that in future, she would not repeat such act of filing
cases against the appellant and his family members on false ground. But after returning from
Bihar, the respondent again started treating the appellant with cruelty deliberately. She used
to go out of the home whenever she liked and if anyone protested for her such act, she used
to give the same threat of filing cases and to get them arrested. She used to say that the
DGP had agreed to give her all police help in that regard. Because of such disobedience and
ruthless nature of the respondent, it became unbearable for the appellant to live with her.
The appellant stated that on 10.08.2009, the respondent left the matrimonial home along
with one Sri Sukhchand Jha to the residence of the DGP in a police vehicle and on the advice
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of the DGP, the respondent lodged an F.I.R. before the Dispur Police Station on 11.08.2009
alleging her physical and mental torture by the appellant and his three family members
including the sister-in-law. In the F.I.R., the respondent alleged that they demanded an
amount of Rs. 1,50,000/- from her parents for construction of a house and purchase of a
motor cycle. When she did not agree to such demands, the appellantand her in-laws
assaulted her and drove her out. On receipt of the said F.I.R., a case was registered at the
Dispur Police Station being Dispur P.S. Case No. 916/2009 under Section 498A, SectionI.P.C. The
appellant and his mother were arrested on 12.08.2009 in connection with the said case. The
appellant was behind the bars from 12.08.2009 to 29.08.2009 whereas his mother was in
custody from 12.08.2009 to 21.08.2009, till they were released on bail. The elder brother and
sister-in-law of the appellant were, however, granted pre-arrest bail in the said case. Since
then, the respondent had resided separately from the appellant. Initially, the respondent took
the younger daughter with her and she started residing in the house of Sri Digambar Jha
(D.W.2) in his quarter at City Police Reserve, Paltan Bazar, Guwahati. As the respondent did
not return to resume the marital ties, the appellant preferred a petition under Section 9 of the
Act before the learned Family Court for restitution of conjugal rights and the same was
registered as Case No. F.C.(Civil) 506/2009. During the pendency of F.C.(Civil) 506/2009, the
respondent in the mediation held, had put several conditions which were not acceptable to
the appellant in view of her previous conduct. It became clear to the appellant from the
statement of the respondent that she was not interested anymore to continue the family life
with the appellant and she wanted to live a separate life. Having realized so, the appellant
decided to withdraw the Case, F.C.(Civil) 506/2009, and thereafter, filed the petition seeking
dissolution of the marriage by a decree of divorce as the marriage had broken down due to
the matrimonial offence of cruelty committed by the respondent. The appellant further
alleged that apart from bringing in the allegation of cruelty including the allegation of demand
of dowry, the respondent had submitted complaint before the higher police officials for which
the appellant had to face suspension and other departmental actions. It is the contention of
the appellant that due to such false complaint of the respondent, the appellant was
transferred from Guwahati to Karimganj and at the time of institution of the petition seeking
divorce, the appellant was serving at Karimganj. The respondent also filed a case in the Court
of learned Special Judicial Magistrate, Kamrup, Guwahati under Section 406, SectionI.P.C. against the
appellant’s mother, elder brother and sister-in-law for seizure of articles and recovery of the
minor daughters and the same was registered as Complaint Case No. C.R. 3383 c/2009 only in
order to harass the appellant and his family members. Denying the allegation of demand of
dowry, the appellant had alleged that the respondent being influenced by others, created a
very unpleasant situation in the family. The children who were in the custody of the
respondent, were left without care and their studies were affected. The so-called guardian of
the respondent, Sri Digambar Jha (D.W.2) was a very cruel person who had threatened the
appellant on several occasions when he had gone to visit his children. The appellant stated
that he had regularly been paying the maintenance amount awarded by the learned Family
Court in a case filed by the respondent under Section 125, Code of Criminal Procedure
(SectionCr.P.C.). He further stated that the respondent was working as a Home Guard but the said
fact was suppressed by the respondent while seeking maintenance. Her service of Home
Guard was provided by the DGP. It is stated by the appellant that during the entire period
when the respondent was with him, she persistently used to threaten the appellant and his
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family members to get them arrested in false cases with the help of high-level police officials
and finally, she got them arrested. Because of such mental cruelty and unjustifiable conduct
and behaviour of the respondent which had affected the mental health of the appellant, the
appellant had stated that it became impossible to live together as husband and wife and
there was no scope of reviving the marital relationship anymore.

5. In response to the petition of the appellant, the respondent submitted her written
statement denying the contentions made in the petition. She denied that suspension of the
appellant was caused due to filing of false case under Section 498A, SectionI.P.C. She stated that she
lived separately with the appellant for a few days due to continuous torture of her mother-in-
law and elder brother of the appellant and the appellant took her to his land situated at
Jyotikuchi hill, Guwahati which was quite underdeveloped at that time and he left her there at
the mercy of the God while going for his duties. The respondent had admitted the fact that
after the amicable settlement on 08.12.2008 before the Panchayat, as mentioned above, she
agreed to come back to Guwahati and to reside with the appellant and his family members
after signing a memorandum of understanding between them. She stated that the appellant
made promise not to repeat any torture and that he would take care of her so as to leave no
scope for her to complain. But when the entire family again indulged in torture and
humiliation by abusing and treating her like a servant, she lodged the F.I.R. before the police
station on 11.08.2009. She stated that on 09.08.2009, she was compelled to file another
F.I.R. against the appellant and his family members due to their mental and physical tortures.
When the incident was informed to her father, he advised her to forgive the appellant and his
family members and to resume her marital life. As per the advice of her father and for welfare
of the children, she joined the matrimonial family. But she was illegally confined and her
minor daughters were detained by the family members of the appellant without providing any
food to them. On 11.08.2009, she managed to come out from the house and to save the lives
of her and her children, she took shelter at the house of her relative in the Police Reserve,
Guwahati and lodged the said F.I.R. which was registered as Dispur P.S. Case No. 916/2009
under Section 498A, SectionI.P.C. The respondent stated that on 21.08.2009, she with the help of
police and relatives went to her matrimonial house for clothes and other belongings and also
to take custody of the minor child. She could take custody of the younger daughter and some
clothes for her survival but her mother-in-law,on that day, confined her elder daughter
insidethe house and did not allow the respondent to meet her daughter. The Complaint Case
No. C.R. 3383c/2009 was filed by her under Section 406, SectionI.P.C. on 29.08.2009 and the
learned Court taking cognizance, issued search warrant for recovery of Stridhan and also to
recover her younger daughter by an order dated 07.09.2009. The police from Odalbakra
Police outpost searched the house of the appellant on 13.09.2009 and recovered some
articles apart from recovering the elder daughter, who was handed over to her. She also fileda
complaint before the Assam State Commission for Women, Guwahati, (“the Women
Commission”, in short) but the appellant did not respond to the summons served on him by
the Women Commission. As regards Case No. F.C.(Civil) 506/2009 seeking restitution of
conjugal rights, the respondent stated that she filed her written statement therein denying
the conjugal rights of the appellant for the reasons stated above. The mediation process held
therein, had failed allegedly due to non-cooperation and adamant nature of the appellant who
was acting on the instigation of her family members. The respondent stated that she had
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expressed her willingness to join the matrimonial family but the appellant did not come
forward with an open heart to accept her and her minor children. She alleged that the
appellant filed the case for guardianship and restitution of conjugal rights only to draw
sympathy from the Court which got contradicted by the filing of the petition for divorce by
him. At the end, the respondent had stated that she hoped for re-union and was ready to
discharge marital obligation by forgiving and forgetting all cruelties meted out to her.

6. Upon the pleadings of the parties, the learned Family Court had framed the following
three issues :-

i) Whether the respondent/opposite party has treated the petitioner with cruelty ?

ii) Whether the petitioner is entitled to get a decree of divorce as prayed for?

iii) To what relief/reliefs the parties are entitled?

7. During the course of proceedings before the learned Family Court, the appellant had
examined 5 (five) nos. of witnesses including himself. The prosecution witnesses are, P.W.1 –
the appellant; P.W.2 -Smti. Chandra Kala Devi, the mother of the appellant; P.W.3 – Smti.
Pooja @ Ranju Devi, the sister-in-law of the appellant; P.W.4 – Smti. Labanya Das, a
neighbour of the appellant and P.W.5 – Sri Deben Sharma, a neighbour of the appellant. The
respondent side had adduced evidence of 3 (three) witnesses viz. D.W.1 – the respondent
herself; D.W.2 – Sri Digambar Jha, an uncle ( fufaji) of the respondent; and D.W.3 – Sri
Krishna Chandar Thakur, the father of the respondent.

8. In his examination-in-chief, the appellant had reiterated what he had stated in the
petition. He further stated that in G.R. Case No. 10157/2009 under Section 498A/Section323, SectionI.P.C.,
registered in connection with Dispur P.S. Case No. 916/2009, the Court of learned Sub-
Divisional Judicial Magistrate (Sadar) – I, Kamrup, Guwahati by the judgment and order dated
07.08.2012 had acquitted him and his family members as the prosecution failed to prove its
case. He further stated that he had no knowledge as whether any appeal was preferred
against the said judgment and order dated 07.08.2012. He further stated that in the
Complaint Case No. C.R. 3383c/2009, his family members were acquitted by the trial Court by
its judgment and order dated 15.11.2012. He also stated that in the application preferred by
the respondent seeking maintenance under Section 125, SectionCr.P.C., the learned Court was
pleased to dispose of the same on compromise by fixing maintenance of an amount of Rs.
4,000/-. He stated that the respondent also filed a case being D.V. Case No. 64/2012 before
the Court of learned Special Judicial Magistrate, Kamrup (M), Guwahati on 26.03.2012 under
the provisions of the Protection of Women from SectionDomestic Violence Act, 2005 (“the SectionDV Act”, in
short) only to harass him and the same was pending disposal. He further stated that for
welfare of the minor children, he had filed a case, F.C. Misc.(G) 216/2009, which was pending
before the learned Family Court. The appellant asserted that since 10.08.2009, the
respondent had been living separately from him. In the cross-examination, he stated that the
marriage was an arranged one and he saw the respondent only 7 days prior to the marriage.
He was not agreeable for marriage but the relatives of the respondent Sri Digambar Jha
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(D.W.2), Paban Jha, the DGP and his wife forced him to marry the respondent by threatening
him to dismiss him from service. He stated that the respondent did not allow his daughters to
meet him. When the respondent left the house in the year 2007, she left both the daughters
behind. When he came to know that the respondent had gone to Bihar, a meeting was held in
Bihar wherein the respondent confessed her guilt. The meeting asked both of them to live
happily but on 10.08.2009,Sukhchand Jha, with police personnel, took the respondent to the
DGP. The appellant feigned ignorance about the relationship between the DGP and the
respondent. He testified that he wanted to live with the respondent initially for which he filed
a case for restitution of conjugal rights but when the respondent refused to live with him, he
filed the petition for divorce. He denied the suggestion that the respondent had left the
matrimonial home in 2007 due to torture meted out by the family. The appellant exhibited a
number of documents including the judgment and order dated 07.08.2012 passed in G.R.
Case No. 10157/2009 as Ext.-2 and the judgment and order dated 15.11.2012 passed by the
Court of learned Special Judicial Magistrate, Kamrup, Guwahati in Complaint Case No. C.R.
3383c/2009.

9. The testimonies of P.W.2, P.W.3, P.W.4 and P.W.5 were similar in nature corroborating
the evidence of the appellant in material particulars. P.W.2. in her cross-examination, denied
of any misbehaviour on her part towards the respondent. She stated that it was the
respondent who treated her family badly and they were sent to jail. Since after 4 months of
the marriage, the respondent started misbehaving with them and it was denied that the
respondent was compelled to go to her parental house due to torture meted out by her and
her son. P.W.2 further denied that there was demand for Rs. 1,50,000/- and a motor cycle on
their part. In her cross-examination, P.W.3 who is the sister-in-law of the appellant, stated
that she with her husband lived together with the appellant and her mother-in-law since after
their marriage. She further reiterated that the appellant was forced to marry the respondent
by D.W.2 and there was no consent from the family of the appellant. She stated that the
appellant once had to stay separately on the insistence of the respondent. When P.W.4 was
cross-examined, he stated that he and other neighbours went to the house of the appellant
when there was argument between the appellant and the respondent. He further stated that
there was no relationship of husband and wife between them and it was the respondent who
did not wantto reside. P.W.5 on being cross-examined, stated that the appellant had stated
before him that the respondent used to go out of the house without informing him and on
being asked, she used to rebuke him.

10. D.W.1, the respondent, reiterated the version she had stated in her written statement.
She admitted that since August, 2009, she had been residing separately from the appellant
and residing at Police Reserve, Paltan Bazar, Guwahati wherein a quarter was provided to her
by her office. She stated that she has been working as a Home Guard with a salary of Rs.
7,000/- per month. She stated that the appellant was serving out of Guwahati when she filed
the F.I.R. under Section 498A, SectionI.P.C. as she was not aware since when the appellant was
residing at Hailakandi. She further stated that after coming out of her matrimonial home, she
resided in the house of her uncle, D.W.2. She denied that her uncle, D.W.2 had threatened
the appellant to marry her. She admitted that when the children were born at Marwari
Maternity Hospital, the appellant and her mother-in-law were with her and all expenses were
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borne by the appellant. She did not want a divorce as her daughters’ lives would be ruined.
She stated that the appellant demanded a motor cycle and Rs. 1,50,000/-. In the house of
the appellant, the mother, the elder brother and elder brother’s wife also resided. She
admitted that in the maintenance case, she has been receiving the money regularly and the
guardianship case has been settled. She admitted about filing of criminal cases and other
cases. She denied about mentally torturing and threatening the appellant. She further stated
that her parents told her to stay with the appellant amicably when the trial of the cases were
going on and also prior to that.

11. D.W.2 in his deposition, had stated that he took the initiative in solemnisation of the
marriage between the appellant and the respondent. The appellant was known to him prior
to the marriage and he felt happy when they got married. After the marriage, the couple lived
in the matrimonial home in Guwahati and for about one year everything was going on well
between them. But he noticed that gradually the appellant started neglecting the respondent
denying her the status of a wife. He stated that later on, he came to know that the
respondent was mentally and physically tortured by the appellant and his family members. On
09.08.2009, the appellant on the instigation of his family members, had beaten the
respondent for not fulfilling their dowry demands and forcefully drove out the respondent. It
was in that situation, the respondent filed a case in Odalbakra Police Outpost. D.W.2 stated to
have advised the respondent to go back to her matrimonial home for the sake of her
daughters and as per his advice, she went back to her matrimonial home. But thereafter also,
the mental and physical torture upon the respondent continued and on 11.08.2009, the
respondent managed to escape from her matrimonial home and came to his house for shelter
wherein she stayed for about 3 years. In his cross-examination, he stated that he is in Assam
Police and he worked with the DGP as a driver. He had good relation with the DGP but he
denied to have threatened the appellant to marry the respondent. He stated that he and the
respondent took out the search warrant and recovered the things from appellant’s house. He
stated that he deposed in the case wherein the appellant was acquitted subsequently. D.W.2
also admitted that all expenses at the time of birth of the children to the couple were borne
by the appellant. He deposed that the appellant once told him that if the appellant gets a
motor cycle and Rs. 1,50,000/- then he would marry the respondent. He further stated that in
the case under Section 498A, SectionI.P.C., the appellant was acquitted by the Court. He further
stated that the appellant and the respondent were living separately since August, 2009 but
the appellant was bearing the expenses of their daughters. He stated that the respondent
had filed 5/6 cases against the appellant and denied that he had given false evidence in the
cases.

12. The father of the respondent (D.W.3) stated that after few months of the marriage,
the respondent was tortured by her mother-in-law and also by the elder brother and his wife
for which the appellant had to take the respondent out of the matrimonial home to his own
land at Jyotikuchi hill, Guwahati which was quite underdeveloped. As the respondent was not
provided any maintenance during that period, she was compelled to join the family once
again finding no other way out. But thereafter also, mental and physical tortures continued
against his daughter by her in-laws. In 2007, the appellant and his family tortured his
daughter demanding Rs. 1,50,000/- and a motor cycle and had driven his daughter out
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keeping the minor daughters with them. When the appellant withdrew the case for restitution
of conjugal right, D.W.3 stated to have requested the appellant to take his daughters with
him but the appellant did not pay any heed to his said request. He admitted about
compromise of the maintenance case pursuant to which an amount of Rs. 4,000/- has been
paid by the appellant regularly. Being a father, D.W.3 never wanted a divorce and he hoped
that the appellant and the respondent would resume their marital relationship. In his cross-
examination, D.W.3 stated that his daughter had filed 5/6 cases against the appellant. As per
D.W.3, the appellant could keep his daughter well. It was D.W.2 who showed the appellant to
his (D.W.2) family prior to the marriage where he had given articles like gold, silver utensils,
furniture, etc. as Stridhan, which were recovered from the house of the appellant later on, for
which he also went there once. He further disclosed that it was his daughter who told him
that the appellant demanded a motor cycle and money. He had stated that the copy of the
agreement of the meeting was deposited by him before the Court. He also stated that right
from the beginning he did not want to take his daughter back to his house. It was D.W.2 who
arranged the marriage between the appellant and the respondent. He denied that his
daughter wanted to live at her own terms and on false pretext, she had harassed the
appellant and his family by filing false cases. Finally, he stated that he felt that the appellant
was a good man.

13. The learned Family Court had recorded a finding that D.W.2 in his cross-examination
had confirmed that after 6 months of marriage, the appellant demanded Rs. 1,50,000/- and a
motor cycle and stated that he would accept the respondent, if the demand was fulfilled. The
learned trial Court went on to hold that D.W.2 stated that D.W.3 told him that D.W.3 paid a
sum of Rs. 20/30 lakhs to the appellant. The learned Court had observed that D.W.2 had
further stated that the mother of the appellant demanded the same from the respondent. The
learned Court had also observed that the allegations made by the appellant could only be
considered as normal wear and tear of the marital life and same did not go to prove the plea
of mental cruelty in the absence of acceptable and cogent evidence. There was no substantial
material on record, the learned trial Court had observed, which demonstrated that the
respondent had treated the appellant with cruelty. The learned trial Court had ultimately held
that the appellant failed to prove that the respondent had deserted him and she meted out
cruelty on him and decided the issue no. 1 and 2 in the negative, thereby, dismissing the
petition for dissolution of the marriage.

14. Ms. Bhuyan, has submitted that the learned Family Court erred in reading the
evidence in the proper perspective while coming to a conclusion that there was no cogent
evidence to hold that the appellant was not treated with cruelty by the respondent. She
submits, by referring to the deposition of the witnesses, that from the conduct, behaviour and
attitude of the respondent, it is amply evident from the evidence on record that it was the
appellant who had suffered all along right from the time of the marriage at the hands of the
respondent. The respondent had treated not only the appellant but also all the family
members of the appellant, with cruelty. The allegation of demand of dowry is false and the
said allegation was made only as an afterthought. The very foundation of the said allegation
stands removed as the appellant and his family members were acquitted from the charges
under Section 498A/Section323/Section34 I.P.C., after trial wherein the prosecution failed miserably to bring
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home the charges. The said fact is further fortified by the decision of acquittal, passed by the
learned trial Court from the charge foisted on the appellant’s family members under Section
406, SectionI.P.C. She submits that cruelty has to be perceived from the appreciation of the
attending facts, in its entirety, and the mental pain, agony and sufferings suffered by the
appellant and his family members at the hand of the respondent. The sufferings by the
appellant in the instant case is more than sufficient to come to a conclusion that the appellant
is entitled to a decree of divorce. In support of her submissions, the learned counsel has
placed reliance in the decisions of SectionVishwanath Agrawal vs. Sarla Vishwanath Agrawal,
reported in (2012) 7 SCC 288; SectionK. Srinivas Rao vs. D.A. Deepa, reported in (2013) 5 SCC
226;SectionK. Srinivas vs. K. Sunita, reported in (2014) 16 SCC 34;and SectionVijaykumar Ramchandra
Bhate vs. Neelay Vijaykumar Bhate, reported in (2003) 6 SCC 334.

15. Per contra, Ms. Devi has supported the findings recorded in the judgment of the
learned Family Court. From the very fact that the appellant himself stated that the marriage
was forced on him is indicative of the fact that from the very inception of the marriage, the
appellant nursed inimical feelings towards the respondent. She further submits that none of
the grounds taken in the appeal are tenable. As the husband himself did not want the
company of his wife, the same would amount to cruelty. It is further submitted that the
testimony of the respondent has been corroborated by D.W.2 and D.W.3. The learned counsel
has placed reliance in the decisions of SectionYudhishter Singh vs. Sarita , reported in AIR 2002
Rajasthan 382; SectionSamar Ghosh vs. Jaya Ghosh, reported in (2007) 4 SCC 511; and SectionSuman
Singh vs. Sanjay Singh, reported in (2017) 4 SCC 85.

16. We have considered the submissions of the learned counsel for the parties. We have
also perused the materials available in the record of the case, F.C.(Civil) Case No. 167/2012,
in original, as well as the findings of the learned Family Court.

17. Both the parties have stated that since August, 2009, they have been living separately
from each other. So far as the respondent is concerned, she had lived in the quarter of D.W.2
initially and later on, after her engagement as a Home Guard, she was allotted a quarter in
the Police Reserve, Guwahati where she has been living since thereafter. It has emerged from
the evidence of the appellant and P.W.2 P.W.3 that the appellant had to marry the
respondent due to exertion of pressure and threatening by the higher police officials and
D.W.2. Even though the appellant was reluctant to enter into such marriage at the time of
marriage but the evidence on record do not suggest anything that the appellant had nursed
any grudge and ill-feelings against the respondent once marriage was solemnised. In such
view of the matter, the submission of the learned counsel for the respondent does not appear
to be on the basis of any evidence on record. Even D.W.2, against whom the appellant and
his family members had stated about his role in the marriage, had deposed that everything
was going on well between the spouses for about one year after the marriage. D.W.2, only in
his cross-examination, had stated that the appellant told him once that he would marry the
respondent if he gets a motor cycle and Rs. 1,50,000/-. He further stated that the father of
the respondent told him once that he gave Rs. 20,000-30,000/- once to the appellant but the
father of the respondent, D.W.3 did not say anything about the demand of the appellant prior
to the marriage. From a reading of the versions of D.W.2 and D.W.3, it is clear that they had
alleged that it was in the year 2007, the appellant and his family members tortured his
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daughter demanding a motor cycle and Rs. 1,50,000/-. In her written statement, the
respondent did not say anything about the demand of dowry by the appellant or his family
members either prior to the marriage or immediately after the marriage. In her examination-
in-chief also, the respondent did not say anything about the demand of dowry by the
appellant. It was only in her cross-examination, she had stated, without any details about
time, date, place, etc., that the appellant demanded a motor cycle and Rs. 1,50,000/-. Thus,
it is evident that the allegation made by the respondent’s side about demand of dowry by the
appellant’s side is an afterthought and no credence is to be given to such allegation. In such
view of the matter, the finding of the learned Family Court about paying a sum of Rs. 20/30
lakhs to the appellant by D.W.3 is perverse, more so, when all the defense witnesses had
stated that the family of the respondent was poor.

18. Though the defendant had alleged that cruelty was meted out to her during the period
after the marriage till August, 2009, there was no allegation of any physical torture. Few
general allegations as regards mental cruelty had been made by the respondent without any
specific details. P.W.3, who is another daughter-in-law in the family, and who got married
prior to the marriage of the respondent, had deposed that she had been living happily in the
family of the appellant. Though the respondent did not hurl any specific allegation against
P.W.3, yet the respondent had chosen to rope in P.W.3 as an accused in all the criminal cases,
G.R. Case No. 10157/2009, Complaint Case No. C.R. 3383 c/2009, and D.V. Case No. 64/2012.
Upon consideration, we do find any apparent reason for the appellant’s family to treat the
two daughters-in-law in two different manners.

19. In the judgment and order dated 07.08.2012 (Ext.-2), the learned trial Court had
recorded that the respondent had offered different versions as regards dowry demands and
injuries sustained by her and it was observed that the respondent had tried to improve the
case which created doubts about the truthfulness and authenticity of her allegations. It was
recorded therein that the respondent had alleged that the incident occurred on 11.08.2009
and the medical examination was done on 19.08.2009. The injuries found were only
abrasions, which kind of injuries starts healing within 24 hours and therefore, the learned trial
Court was of the opinion that the injury report was procured. As regards the allegation of
demand of dowry, the respondent had alleged therein that demand was started after few
months of marriage but none of the independent witnesses had supported her case. Later,
the prosecution witnesses therein stated that the spouses were living mutually and some
misunderstanding had cropped up between them. None of the family members of the
respondent had appeared as witnesses to adduce evidence though they would have been, in
the normal course, the witnesses who were in the position, the learned trial Court observed,
to adduce evidence regarding demand and dowry.

20. It is evident from Ext.-1, Ext.-2 and Ext.-3 that, the cases under Section 406, SectionI.P.C.
(Complaint Case No., C.R. 3383c/2009), under Section 498A/Section323, SectionI.P.C. (G.R. No.
10157/2009) and under Section 125, SectionCr.P.C. (F.C.(Crl.) No. 561/2009) were instituted in the
year 2009 and the trial of those cases proceeded accordingly, which were culminated finally
in the year 2012, as already noted above. From Ext.-4, it is noticed that in the year 2012, the
respondent instituted a case under the SectionD.V. Act against the appellant, his mother, his elder
brother and sister-in-law alleging perpetration of domestic violence against her, when the trial
Page No.# 11/13

of the afore-mentioned cases were at the final stage. As per her own version, the respondent
had left the matrimonial home in August, 2009 and since then she had been living separately
from the appellant and his family.

21. In Samar Ghosh (supra), the Hon’ble Supreme Court set out few illustrative cases
wherefrom inference of ‘mental cruelty’ can be drawn. It has been observed that cruelty is
evident where one spouse has so treated the other and manifested such feelings towards her
or him as to cause in her or his mind reasonable apprehension that it will be harmful or
injurious to live with the other spouse. Cruelty may be physical or mental. While drawing out
illustrative cases, the Hon’ble Supreme Court has held that each case presents its own
peculiar factual matrix or existence or otherwise. Thus, mental cruelty will have to be judged
after applying mind to the facts of the case and no uniform standard can ever be laid.
Whether one spouse has inflicted cruelty on the other spouse has to be inferred on a
comprehensive appraisal of the entire matrimonial life of the parties and if it becomes
abundantly clear that the situation is such that the wronged party cannot reasonably be
asked to put up with such conduct and continue to live with the other party, the same will be
a case of mental cruelty. Feeling of deep anguish, disappointment, frustration in one spouse
caused by the conduct of other for a long time may amount to mental cruelty. Similarly, a
sustained course of abusive and humiliating treatment calculated to torture or render
miserable life of the spouse may also amount to mental cruelty. The marriage life should be
reviewed as a whole and where there has been a long period of continuous separation, it can
well be concluded that the matrimonial pain is beyond repair. In K. Srinivas Rao (supra), the
Hon’ble Supreme Court after referring to the instances illustrative of mental cruelty noted in
Samar Ghosh (supra), has, inter-alia, observed that allegations against spouse or his or his
relatives by filing repeated false complaints and cases in the Court against spouse would, in
the facts of a case, amount to causing mental cruelty to the other spouse.

22. In K. Srinivas Rao (supra), it has been further observed that staying together under
the same roof is not a pre-condition of mental cruelty. A spouse can cause mental cruelty by
his or her conduct even while he or she is not staying under the same roof. In a given case,
while staying away, a spouse can cause mental cruelty to the other spouse by initiating
number of judicial proceeding to make the other spouse’s life miserable. In K. Srinivas
(supra), it is held that filing of false criminal complaint against the husband and his family
members under Section 498A read with Section 307, SectionI.P.C. may amount to cruelty.

23. In Suman Singh (supra), the Hon’ble Supreme Court took note of the enumeration of 16
categories of instances of human behavior, cited in Samar Ghosh (supra) and held that the
said case did not come under purview of any grounds so as to come within mental cruelty. In
Yudhishter Singh (supra), it was held that a husband cannot ask his wife that he does not like
her company, but she can or should stay with other members of the family in matrimonial
home. If such is the attitude of the husband, then the same amounts to cruelty. The ratio of
the said decision is not attracted to the facts and circumstances of the present case. The
decision in Vijaykumar Ramchandra Bhate (supra) is with regard to cruelty in the context of
character assassination in or during divorce proceedings by one spouse or the other.

24. In the present case, when the proceeding of the cases instituted by the respondent in
Page No.# 12/13

the year 2009, against the appellant and his family members were at an advanced stage in
the year 2012, the respondent instituted another case under the provisions of the SectionD.V. Act
alleging domestic violence whereas she left the company of the appellant and his family
members as far back as in August, 2009 and has been living separately since then. Even after
about 3 years of her leaving the matrimonial home, the respondent levelled allegations not
only against the appellant but also against all the other 3 family members of the appellant.
From the above conspectus of facts, it is demonstrative of the fact that the respondent had
instituted the said proceeding under the SectionD.V. Act only to cause harassment and torture not
only against the appellant but also his family. It is noticed that in all the proceedings
instituted by her, the respondent had tried to rope in not only the appellant but also his other
family members and in all such proceedings, the appellant and his family members were
acquitted. From the above fact situation obtaining in the case, it is established that there has
been a sustained effort on the part of the respondent throughout these years with the sole
aim to cause harassment, humiliation and torture so as to make not only the life of the
appellant miserable and tormented but also the lives of his family members including her
sister-in-law i.e. the wife of the elder brother of the appellant, against whom so far she made
no specific allegation. Such sustained and continuous efforts on the part of the respondent
had also resulted in suspension of the appellant in his service career at one point of time and
also resulted in his transfer, at the behest of D.W.2, an uncle of the respondent who is stated
to be close to the DGP. There are sufficient reasons for the appellant to feel humiliated and
harassed. Having analyzed the tribulations faced by the appellant all these years at the
behest of the respondent, we are of the considered opinion that the appellant has been
treated with such mental cruelty by the respondent that he had adequate reason to believe
that it was no longer safe for him to continue in the marital relationship with the respondent
anymore. Therefore, he is entitled to a decree of divorce under Section 13(1)(ia) of the Act.
Resultantly, the impugned judgment and order dated 03.11.2016 passed by the learned
Family Court is liable to be set aside and quashed and this appeal deserves to be allowed,
which we accordingly do.

25. As the learned Family Court did not allow the petition of the appellant seeking
dissolution of marriage for a decree of divorce, the question of alimony did not arise. Having
gone through the materials on record, we have not found any application of the respondent
seeking alimony. Furthermore, the parties have not led any specific evidence on that aspect
to consider any order on alimony by us on the basis of the materials available on record.
Section 25 of the Hindu Marriage Act has empowered the Court, exercising jurisdiction under
the Act, to grant of permanent alimony and maintenance on an application made to it for
that purpose by either the wife or the husband. In any view of the matter, such order on
alimony can be passed either at the time of passing the decree or at any time subsequent
thereto also. Therefore, option is always available to make such an application even after
passing of the decree of divorce. Liberty stands granted to the respondent to make such
application under Section 25 of the Hindu Marriage Act, if not preferred earlier or during the
interregnum.

26. We, however, order that the appellant shall continue to pay the maintenance in terms
of the order dated 20.07.2013 (Ext.-3) passed in F.C.(Crl.) No. 561/2009. It is noticed that in
F.C.(Crl.) No. 561/2009 filed under Section 125, SectionCr.P.C., the learned Family Court on the basis
Page No.# 13/13

of a petition No. 761/2013 filed jointly by the appellant and the respondent after amicable
settlement, passed the order dated 20.07.2013 directing the appellant to pay Rs. 4,000/- per
month to the respondent for maintenance, education and other expenses of the two minor
daughters with effect from the date of the said order.

27. The decree is to be prepared accordingly.

28. The Registry to return the LCR accordingly.

JUDGE CHIEF JUSTICE (ACTING)

Comparing Assistant

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