HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 Case :- FIRST APPEAL DEFECTIVE No. - 282 of 2015 Appellant :- Lallu Prasad Respondent :- Smt. Rampatiya @ Billi Counsel for Appellant :- Pranav Kumar Srivastava, Ashutosh Kumar Singh Hon'ble Sudhir Agarwal, J.
Hon'ble Brijesh Kumar Srivastava-II, J.
1. The delay in filing this appeal having been condoned vide order of date passed on Delay Condonation Application, let the appeal be registered with regular number and the old number shall also continue to be shown in bracket for finding out details of case, whenever required by parties with reference to either of the two number.
2. As requested by learned counsel for appellant, we proceed to hear the appeal for admission today itself.
3. Heard Sri P.K. Srivastava, learned counsel for appellant and perused the record.
4. The instant appeal has been preferred under Section 19 of Family Courts Act, 1984 (hereinafter referred to as "Act, 1984") against the judgment and order dated 19.12.2014 passed by Principal Judge, Family Court, Kaushambi in Matrimonial Case No. 324 of 2013 (Lallu Prasad Vs. Smt. Rampatiya alias Billi) whereby divorce petition of plaintiff-appellant filed under Section 13 of Hindu Marriage Act, 1955 (hereinafter referred to as "Act, 1955") has been dismissed with cost.
5. This appeal has been preferred on the ground that judgment and decree of Court below is based on assumptions and suppositions and learned Court below has failed to correctly appreciate the pleadings of the parties and materials on record in view of settled proposition of law in this regard and, therefore, impugned judgment and decree is liable to be set aside by this Court. It is also asserted that evidence of witnesses was not properly appreciated and learned Court below has erred in law by giving preponderance to the defence witnesses over and above the plaintiff-witnesses in respect to the issue of desertion without assigning any reason for doing so. In fact, it was not a case of irretrievable breakdown of marriage. Taking certain other grounds, it is pleaded that the appeal should be allowed.
6. It appears from record that initially a Case No. 324 of 2013 was filed by appellant under Section 13 of Act, 1955 for dissolution of marriage. It was asserted that marriage had taken place in the year 1980 and the behavior of defendant was abnormal right from the beginning. A issue was born out of wedlock which died subsequently and the second issue is around 14 years of age. The defendant always committed cruelty and finally left for maternal house with all her belongings. In spite of request of plaintiff, defendant did not come and even panchayat between the parties failed. Ultimately, a Petition under Section 125 Cr.P.C. was filed in which order was passed on 8.12.2005 for awarding maintenance amount which is being still paid. Since defendant has deserted the plaintiff and not willing to reside with plaintiff, therefore, suit for dissolution of marriage was filed.
7. The defendant, Smt. Rampatiya alias Billi denied the assertion of plaintiff but admitted the marriage. It was also asserted that plaintiff does not want to pay maintenance amount. Plaintiff has sufficient income. The suit is liable to be dismissed. It was also asserted that defendant was willing to reside with plaintiff, but he himself never was willing to keep her with him.
8. On the basis of pleadings of parties, following issues were framed:
^^1- D;k oknh izfrokfnuh ls fookg foPNsn dh fMxzh ikus dk vf/kdkjh gS\^^ "1. Whether the plaintiff is entitled to get a decree of dissolution of marriage from the defendant?"
^^2- D;k oknh }kjk okn dk ewY;kadu de fd;k x;k gS rFkk vnk fd;k x;k U;k; 'kqYd vi;kZIr gS\^^
2. Whether the suit of the plaintiff is under valued and the Court fee paid is insufficient?"
^^3- vuqrks"k\^^ 3. Relief?" (English Translation by the Court)
9. On behalf of plaintiff, copy of application under Section 125 Cr.P.C. (Case No. 9 of 2009), copy of written statement by appellant, copy of statement of Rampatiya and copy of judgment dated 8.12.2005 was adduced as documentary evidence. Besides, the plaintiff Lallu Prasad was examined as PW-1 and Ramhans as PW-2.
10. On behalf of defendant-respondent, no documentary evidence was adduced. The defendant Smt. Rampatiya and Subedar were examined as DW-1 and DW-2 respectively. After hearing the parties, the suit under Section 13 of Act, 1955 was dismissed.
11. Before appreciating the contention of appellant, it is necessary to go through the provisions of law.
12. Section 13(1) (ib) of Act, 1995 provides for grant of divorce on the ground of desertion for a continuous period of not less than two years immediately preceding the presentation of the petition. The aforesaid provision stipulates that a husband or wife would be entitled to a dissolution of marriage by decree of divorce if the other party has deserted the party seeking the divorce for a continuous period of not less than two years immediately preceding the presentation of the petition. Desertion, as a ground for divorce, was inserted to Section 13 by Act 68/1976. Prior to the amendment it was only a ground for judicial separation. Dealing with the concept of desertion, this Court in Savitri Pandey Vs. Prem Chandra Pandey (2002) 2 SCC 73 has ruled thus:
"Desertion", for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations i.e. not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to a host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbai Shah v. Prabhavati held that if a spouse abandons the other in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion.
13. In the said case, reference was also made to Lachman Utamchand Kirpalani Vs. Meena @ Mota AIR 1964 SC 40, wherein it has been held that desertion in its essence means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation.
14. As far as the issue of cruelty is concerned, it is appropriate to state how the said concept has been viewed by Apex Court. In Vinit Saxena Vs. Pankaj Pandit (2006) 3 SCC 778, wherein while dealing with the issue of mental cruelty, the Court held as follows:
"31. It is settled by a catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the section. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such wilful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case.
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35.Each case depends on its own facts and must be judged on these facts. The concept of cruelty has varied from time to time, from place to place and from individual to individual in its application according to social status of the persons involved and their economic conditions and other matters. The question whether the act complained of was a cruel act is to be determined from the whole facts and the matrimonial relations between the parties. In this connection, the culture, temperament and status in life and many other things are the factors which have to be considered."
15. In Samar Ghosh Vs. Jaya Ghosh (2007) 4 SCC 511, this Court has given certain illustrative examples wherefrom inference of mental cruelty can be drawn. The Court itself has observed that they are illustrative and not exhaustive. We think it appropriate to reproduce some of the illustrations:
"(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
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(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
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(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
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(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where [pic]the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
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(xiv)Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty."
16. In the said case the Court also observed:
"99. ... The human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in the other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.
100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances...."
17. In Vishwanath Agrawal, s/o Sitaram Agrawal Vs. Sarla Vishwanath Agrawal (2012) 7 SCC 288, while dealing with mental cruelty, it has been opined thus:
"22. The expression "cruelty" has an inseparable nexus with human conduct or human behaviour. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status."
18. In the said case, analyzing the subsequent events and the conduct of the wife, who was responsible for publication in a newspaper certain humiliating aspects about the husband, the Court held as follows:
"In our considered opinion, a normal reasonable man is bound to feel the sting and the pungency. The conduct and circumstances make it graphically clear that the respondent wife had really humiliated him and caused mental cruelty. Her conduct clearly exposits that it has resulted in causing agony and anguish in the mind of the husband. She had publicised in the newspapers that he was a womaniser and a drunkard. She had made wild allegations about his character. She had made an effort to prosecute him in criminal litigations which she had failed to prove. The feeling of deep anguish, disappointment, agony and frustration of the husband is obvious."
19. In K. Srinivas Rao Vs. D.A. Deepa (2013) 5 SCC 226, while dealing with the instances of mental cruelty, the court opined that to the illustrations given in the case of Samar Ghosh (supra) certain other illustrations could be added. We think it seemly to reproduce the observations:
"Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse."
20. In Ramchander Vs. Ananta (2015) 42 SCD 418, it was held:
"The expression ''cruelty' has not been defined in the Hindu Marriage Act. Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes a reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Cruelty can be physical or mental."
21. Now reverting back to the factual assertions, we will have to shortly analyze the evidence placed on record. The plaintiff-appellant, Lallu Prasad, was examined as PW-1, who has alleged that his marriage took place with defendant-respondent in the year 1980 according to Hindu customs. Respondent had gone to husband's house but always behaved abnormally. One son was born out of wedlock who died and another issue was also born who is 14 years of age and is with the respondent. He has also asserted that respondent was always treating him with cruelty and subsequently left with all her belongings for parents' house. In spite of request of appellant, respondent did not come. A Panchayat was also summoned, but it yielded no result. On flimsy grounds a maintenance suit was filed and certain amount of maintenance was granted by competent Court of law, which is being given by appellant. The witness has specifically admitted that his wife was not of unsound mind. No such specific incident has been brought on record which can show the abnormal behavior of respondent. It also appears from record that in the year 1998, the appellant had filed a Petition under Section 9 of Hindu Marriage Act, but it was subsequently withdrawn by appellant. An inference can be drawn that appellant was not interested to keep the respondent.
22. Ramhans has been examined as PW-2. This witness has alleged that respondent has not contracted any other marriage and the appellant appears to be literate. So as far as desertion is concerned, it appears that appellant had deserted the respondent. There is nothing on record, which may indicate that respondent has deserted appellant. From whatever facts have been placed on record, it is very difficult to assume cruelty in the light of those circumstances.
23. Smt. Rampatiya has been examined as DW-1, who has alleged that due to alleged conditions, she is residing with her parents. She wants to reside with her husband and in fact appellant is interested in marrying again. Subedar has been examined as DW-2, who has almost asserted the same facts.
24. The respondent appears to be illiterate. In the light of evidence recorded, we are compelled to conclude that Trial Court has correctly appreciated the factual assertions and has rightly drawn the conclusion. The conclusions drawn by Court below cannot be said perverse or arbitrary keeping in mind those factual assertions. The petition was, therefore, rightly dismissed by Court below and in our considered opinion, it does not warrant any interference.
25. The appeal is devoid of merits and is, accordingly, dismissed.
Dt. 09.09.2015 PS Court No. - 34 Case :- FIRST APPEAL DEFECTIVE No. - 282 of 2015 Appellant :- Lallu Prasad Respondent :- Smt. Rampatiya @ Billi Counsel for Appellant :- Pranav Kumar Srivastava,Ashutosh Kumar Singh Hon'ble Sudhir Agarwal, J.
Hon'ble Brijesh Kumar Srivastava-II, J.
1. This is an application seeking condonation of delay in filing appeal.
2. Heard.
3. Cause shown is sufficient.
4. Delay in filing appeal is hereby condoned.
5. This application, accordingly, stands allowed.
Dt. 09.09.2015 PS (Delay Con App. 311128/15)