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Umesh Kant vs Smt. Priti on 22 January, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved on 14.10.2019

Delivered on 22.01.2020

Court No. – 34

Case :- FIRST APPEAL No. – 593 of 2017

Appellant :- Umesh Kant

Respondent :- Smt. Priti

Counsel for Appellant :- Lavkush Kumar Shukla, Lokesh Kumar Dwivedi

Counsel for Respondent :- Brij Bhushan Upadhyay, Vikash Chandra Tiwari

Hon’ble Sudhir Agarwal,J.

Hon’ble Rajeev Misra,J.

(Delivered by Hon’ble Rajeev Misra, J.)

1. Plaintiff-appellant Umesh Kant has filed present first appeal under Section 19 of Family Courts Act, 1984 (hereinafter referred to as ‘Act 1984’) challenging Judgment dated 13.7.2017 and decree dated 19.7.2017 passed by Sarvesh Kumar Pandey, Judge, Family Court, Fast Track Court, Agra in Suit No. 1504 of 2015 (Umesh Kant Vs. Smt. Priti) whereby suit for divorce filed by appellant on the grounds of cruelty and desertion has been dismissed.

2. We have heard Mr. Lavkush Kumar Shukla, learned counsel for plaintiff-appellant (hereinafter referred to as ‘plaintiff’) and Mr. P.K. Tiwari, Advocate holding brief of Mr. Vikas Chandra Tiwari, learned counsel representing defendant-respondent (hereinafter referred to as ‘defendant’).

3. Plaintiff filed Suit No. 1504 of 2015 (Umesh Kant Vs. Smt. Priti) for annulment of marriage of parties solemnized on 19.2.2006. According to plaint allegations, marriage of parties was solemnized on 19.2.2006 in accordance with Hindu Rites and Customs. From wedlock and co-habitation of parties, a son was born. According to plaintiff, defendant left her matrimonial home on 9.5.2010. When in spite of repeated requests made by plaintiff, defendant refused to come to her marital home and discharge her marital/spousal obligations, plaintiff filed a suit for restitution of conjugal rights which was ultimately decreed ex-parte, vide Judgment and decree dated 3.11.2012. In spite of aforesaid Judgment and decree as well as repeated requests made by plaintiff, defendant did not come to her marital home. According to plaintiff, he went on 9.5.2010 to persuade defendant to come to her marital home but she refused. After passing of Judgment dated 3.11.2012 in suit for restitution of conjugal rights filed by plaintiff, he again went on 18.11.2012 to request defendant to come to her marital home, but she refused. It is alleged by plaintiff that according to defendant her marriage has been solemnized with plaintiff, contrary to her wishes, even when she wanted to marry another man. In the light of above, a panchayat was called in which family members and relatives of plaintiff and defendant assembled. Aforesaid fact was disclosed to the panchayat and respondent openly stated before panchayat that she does not wish to live with plaintiff as she wants to marry another man. Attempt was made by family members and relatives to persuade respondent to discharge her marital obligations, but she disagreed to accept the same. Irrespective of aforesaid, plaintiff repeatedly attempted to bring respondent to her marital home, but she did not return. Even family members of respondent did not respond to the occasion by sending respondent to her marital home. Conduct of defendant is unlike a faithful and pious wife as all attempts to persuade her for establishing marital relationship have failed. Defendant has deserted plaintiff on 9.5.2010 and since then, there has been no conjugal relationship between parties. Co-habitation and conjugal relation with defendant is impossible. Defendant has committed physical and mental cruelty upon plaintiff as she has failed to discharge her spousal obligation and deprive plaintiff pleasures of married life. Plaintiff and defendant have separated in the year 2009 and thus, for the last six years, they have been living separately. In the aforesaid period, there has been no establishment of conjugal relations nor the respondent has conceived through plaintiff. It was thus urged by plaintiff that except for divorce there is no other way to resolve the stalemate.

4. Suit filed by plaintiff was contested by defendant. Accordingly, she filed a written statement (paper no. 6 Ka) whereby she substantially denied plaint allegations. Factum of marriage between parties was admitted, but, according to defendant, marriage between parties was solemnized on 19.2.2007 and not on 19.2.2006 as alleged in the plaint. It was further admitted that from wedlock of parties, a son was born. Rest of the averments made in plaint were denied. However, the denial was not explained and by and large it was a bald denial as it was without giving specific details. Factum regarding passing of decree for restitution of conjugal rights at the behest of plaintiff was denied on the ground of ignorance. Allegations made in plaint were said to be illusionary. Respondent, however, stated that she is ready to reside with plaintiff. On aforesaid defence, defendant prayed for dismissal of suit filed by plaintiff.

5. Plaintiff filed a replication (paper no. 7 Ga) wherein he reiterated and reaffirmed the allegations made in plaint.

6. On the pleadings of parties, Court below framed following issues for determination:-

I. Whether, on the basis of allegations made in plaint, marriage of parties solemnized on 19.2.2006 can be dissolved?

II. Whether, plaintiff is entitled to any relief?

7. After aforesaid issues were framed, parties went to trial. Plaintiff in order to prove his case, adduced himself as P.W.1 and further filed documentary evidence as detailed at page 69 of paper book. Respondent in order to establish her defence adduced herself as D.W.1 and further adduced one Lakshman as D.W.2. Respondent further filed documentary evidence as detailed at page 69 of paper book.

8. Upon consideration of pleadings of parties and evaluation of evidence adduced, Court below proceeded to decide Issue No.1. Court below arrived at the conclusion that plaintiff has failed to establish commission of cruelty by respondent upon him and consequently, dismissed suit of plaintiff, vide Judgment dated 13.7.2017 and decree dated 19.7.2017. Feeling aggrieved by aforesaid Judgment and decree plaintiff has now filed present first appeal before this Court.

9. Challenging the impugned Judgment and decree passed by Court below learned counsel for appellant submits that plaintiff has filed suit for divorce on the ground of cruelty and desertion. However, Court below has framed a single issue to the effect:-Whether decree of divorce can be granted on grounds mentioned in the plaint. According to learned counsel for appellant, cruelty and desertion are independent grounds for divorce as provided under Section 13 of Act 1955. While pleading desertion, plaintiff must plead and prove that defendant has deserted plaintiff and has continued to do so for a period of two years immediately preceding the date on which suit was instituted. No such pre-requisite is required in case divorce is pleaded on ground of cruelty. Since both the grounds are neither interlinked nor inter-dependent, they are required to be proved independently. Therefore, issue No.1 framed by Court below was wholly ambiguous. Court below ought to have framed specific issues regarding grant of divorce on the grounds of ‘cruelty’ as well as ‘desertion’.

10. He next submits that Court below in the impugned Judgment has only considered issue of ‘cruelty’ and ignored issue of ‘desertion’, even though same was duly pleaded in plaint. He has invited attention of Court to paragraph 9 of plaint wherein specific plea with regard to ‘desertion’ has been raised. He, thus, submits that judgment and decree passed by Court below are liable to be set aside and matter is liable to be remanded to Court below for decision afresh.

11. Mr. Vikas Chandra Tiwari, learned counsel for respondent, on the other hand, has supported impugned judgment and decree by pointing out findings recorded in the impugned judgment as well as observations made therein. He has referred to conclusion drawn by court below in respect of issue no.1. Court below has concluded that defendant has not deserted plaintiff out of her own will, but has been forced to live separately on account of conduct of plaintiff. As such there is no desertion on the part of defendant. According to learned counsel for respondent, since respondent has categorically pleaded in her written statement that she is ready and willing to reside with plaintiff, no further cause of action remains with plaintiff to pursue the suit for divorce. In his submission, dispute between the parties is a matrimonial dispute and once respondent has agreed to reside at her matrimonial home and thereby agreed to discharge her marital and spousal obligations an order of remand, if passed by this Court, would be a futile exercise. He, therefore, strenuously urged that interest of justice shall better be served in case the present appeal is itself dismissed. Same will bring the matrimonial dispute between the parties to an end and minor child will have the pleasure of love and affection of his father.

12. Upon submissions made by counsel for parties, following issues have arisen for determination in present appeal:-

I. Whether Issue No.1 framed by Court below was erroneous inasmuch as Court below ought to have framed specific issues regarding cruelty and desertion?

II. Whether conclusion drawn by Court below is patently erroneous as Court below has considered only issue of cruelty, but has completely ignored the issue of desertion specifically pleaded in plaint?

13. Before proceeding to consider the correctness of submission urged by learned counsel for appellant, it shall be useful to reproduce Section 13 of Act 1955, which provides grounds for divorce:-

“13 Divorce. –(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party–

[(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]

(ii) has ceased to be a Hindu by conversion to another religion; or

[(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation.–In this clause,–

(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or]

(iv) has been suffering from a virulent and incurable form of leprosy; or

(v) has been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vi) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;

[Explanation. –In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]

[(1-A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground–

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,—

(i) in the case of any marriage solemnised before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnisation of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or

(ii) that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or bestiality; or

[(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or

(iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

Explanation. –This clause applies whether the marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976).

STATE AMENDMENT

Uttar Pradesh.– In its application to Hindus domiciled in Uttar Pradesh and also when either party to the marriage was not at the time of marriage a Hindu domiciled in Uttar Pradesh, in section 13–

(i) in sub-section (1), after clause (i) insert (and shall be deemed always to have been inserted) the following

“(1-a) 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; or”, and

(ii) for clause (viii) (since repealed) substituted and deem always to have been so substituted for following.

” (viii) has not resumed cohabitation after the passing of a decree for judicial separation against that party and–

(a) a period of two years has elapsed since the passing of such decree, or

(b) the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of other party; or”.”

14. From perusal of Section 13 of Act 1955, it is explicitly clear that Section 13 (1) (ia) contemplates grant of divorce on the ground of ‘cruelty’ whereas Section 13 (1) (ib) contemplates grant of divorce on the ground of desertion.

15. From the scheme of Act 1955, it is explicitly clear that decree of divorce can be prayed for, on the grounds of cruelty, desertion or both. However, cruelty and desertion are independent grounds of divorce and not dependent upon each other. Therefore, grounds of cruelty and desertion are distinct grounds. Hence, both are required to be pleaded and proved specifically. The only pre-condition necessary for pleading divorce on the ground of desertion is that plaintiff must plead and prove that defendant has deserted plaintiff and continued so for a period of two years immediately preceding the institution of suit.

16. From perusal of plaint, we find that plaintiff had specifically taken the plea of desertion in paragraphs 5 9 of plaint which reads as under:-

^^5 ;g fd vafre ckj foi{kh;k Jherh izhfr dks fyokus /kkjk9 fgUnw fookg vf/kfu;e ls igys ;kph fnukad 952010 dks foi{kh;k dks fyokus x;k vkSj /kkjk 9 fgUnw fookg vf/kfu;e fu.kZ; ds ckn ;kph foi{kh;k dks fyokus mlds xkWo laokbZ vafre ckj fnukad 181112 dks x;k ysfdu foi{kh;k izhrh ;kph ds lkFk ugha vk;h vkSj ;kph dks viekfur djds okfil Hkst fn;kA

9 ;g fd ‘kknh ds ckn ls gh ;kph o foi{kh;k ds e/; erHksn jgs rFkk fnukad 952010 ls fdlh izdkj ds dksbZ oSokfgd lEcU/k ugha jgs ,slh fLFkfr esa ;kph ds ikl fookg foPNsnu ds vykok vU; dksbZ nwljk jkLrk ugha gSA^^

“That, last time, the plaintiff went to bring Smt. Priti on 9.5.2010 before delivery of verdict under Section 9 of Hindu Marriage Act and after verdict, plaintiff went to bring opposite party from her village Sanwai last time on 18.11.2012 but she did not come with him and returned him after humiliation.

That, just after marriage, discord developed between plaintiff and opposite party and since 9.5.2010, there has been no marital cohabitation between them and under such circumstance, plaintiff has no other option but to get divorced.”

(English Translation by Court)

17. Similarly, plaintiff has raised the plea of ‘cruelty’ in paragraph 1 of plaint to the extent that in spite of decree of restitution of conjugal rights granted on 3.11.2012, respondent failed to discharge her marital and spousal obligations causing mental cruelty to plaintiff. Similarly, in paragraph 4 of plaint, it has been averred that as respondent has failed to reside with plaintiff, same has caused mental and social inconvenience leading to commission of cruelty.

18. From perusal of impugned Judgment, we find that Court below has not specifically framed an issue regarding ‘desertion’ pleaded by plaintiff. Pleadings in this regard were specifically raised by plaintiff, but same was not admitted by respondent. Consequently, it became an issue between parties. Court below ought to have decided the same by specifically framing an issue. However, we find that court below while deciding issue no.1 has returned a finding that defendant has not ‘deserted’ plaintiff out of her own will. We are afraid to sustain this finding. In our view, procedure adopted by Court below in deciding suit of plaintiff is not just and fair. Failure on the part of court below in not specifically framing an issue on ‘desertion’ and then considering the evidence adduced by parties amounts to an erroneous trial. Consequently, finding recorded by court below that defendant has not left plaintiff out of her will, is not a conclusive finding derived from the pleadings raised by parties and evidence adduced in this regard, cannot be sustained. We accordingly, set aside impugned judgment and decree passed by Court below and remit the matter to Court below to re-adjudicate the same in light of observations made herein above.

19. In view of what has been stated above, present appeal succeeds and is liable to be allowed. Accordingly, same is allowed. Impugned Judgment dated 13.7.2017 and decree dated 19.7.2017 passed by Sarvesh Kumar Pandey, Judge, Family Court, Fast Track Court, Agra in Suit No. 1504 of 2015 (Umesh Kant Vs. Smt. Priti) are hereby set aside. Matter is remanded to Court below for decision afresh in accordance with law and observations made above. Cost made easy.

Order Date :- 22.1.2020

Ram Murti

 

 

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