Vinay Kumar Pathak vs Smt. Annapurna Awasthi
2017 Latest Caselaw 3709 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
RESERVED
 
Court No. - 30
 
Case :- FIRST APPEAL No. - 654 of 2013
 
Appellant :- Vinay Kumar Pathak
 
Respondent :- Smt. Annapurna Awasthi
 
Counsel for Appellant :- Anshu Chaudhary
 
Counsel for Respondent :- Prashant Kumar Srivastava
 

 
Hon'ble Suneet Kumar,J.

Heard Sri Anshu Chaudhary, learned counsel for the appellant and Sri Shashi Ranjan Srivastava holding brief of Sri Prashant Kumar Srivastava, learned counsel for the respondent.

The instant appeal filed under Section 28(1) of the Hindu Marriage Act, 19551 read with section 96 of the Code of Civil Procedure, is directed against the judgment and decree dated 18 September 2013 passed by the Special Judge (SC/ST Act)/Additional District Judge, Jalaun at Orai, in Matrimonial Case No. 57 of 2008 (Vinay Kumar Pathak Versus Smt. Annapurna Awasthi).

The appellant/husband instituted a petition for divorce under Section 13 of the Act on the ground of cruelty and desertion. It was pleaded that the marriage between the appellant and respondent was solemnized on 4 December 1998 in accordance with hindu rites and customs. After a short time, the respondent deserted the appellant on 25 December 1999 and since then is continuously living at her parental house. From the marriage, a son was born who is presently aged about 16 years and is living with the respondent. The cause for instituting the petition arose on 7 April 2008 when the respondent refused to live with the appellant as his wife.

The appellant is unemployed, but is engaged and dependent on the farming activity of his father. The family jointly holds 25 acres of agricultural land. The appellant has an elder brother who is also unemployed and dependent on agriculture. The respondent is a graduate and educated lady of liberal and independent thinking, her parents are lecturer, however, the respondent does not want to stay in a joint family, therefore, insists for partition and to live separately with the appellant. She does not permit the appellant to meet his son.

The respondent entered appearance by filing written statement denying the allegations made in the plaint, only admitting the marriage and son being born therefrom. It is pleaded that the appellant and his elder brother alongwith his father is engaged in agriculture and in sale and purchase of land. Father of the appellant is a Zamindar holding 30-40 acres of agricultural land and enjoys prestige and good reputation in the society. By profession he is a lawyer. It is further pleaded that the appellant takes alcohol, indulges in gambling, therefore, does not look after the respondent or his son. The respondent is a traditional lady who beliefs that the husband is god to her, therefore, she is prepared to live alongwith the appellant and cannot contemplate of divorcing her husband.

The appellant got himself examined as P.W.-1 and Santosh Kumar Mishra as P.W.-2. The petition filed under Section 125 Cr.P.C. by the respondent was made an exhibit. The respondent did not file any documentary evidence, but she got herself examined as D.W.-1, Ved Vinod Dwivedi as D.W.-2, Harikesh Bajpayee as D.W.-3, Om Prakash Nayak as D.W.-4 and Sri Jagdish Prashad Mishra as D.W.-5.

The trial court framed the following issues:

1. Whether the respondent has deserted the appellant without any sufficient reason?

2. Whether the respondent is residing separately against the wishes of the appellant and her conduct tantamounts to cruelty upon the appellant?

3. Whether the appellant has instituted the suit on the basis of wrong facts?

4. Whether the appellant himself has deserted the respondent?

5. Whether the appellant is entitled to the relief claimed?

The trial court upon considering the oral evidence and rival contentions of the parties arrived at a conclusion that the appellant, though alleged desertion by the respondent since 25 December 1999, but was continuously in touch with the respondent until 2007. The suit was instituted on 3 May 2008 and it is admitted that they were also cohabiting, therefore, the trial court held that the appellant failed to prove that the respondent had deserted the appellant.

The trial court was of the opinion that merely for the reason that the wife is not prepared to stay in a joint family as she is not having good relation with the mother-in-law and wife of the elder brother (jethani), and therefore, insists to stay separately with her husband would not tantamount to cruelty. The issues were decided against the appellant, consequently, the suit was dismissed.

Learned counsel for the appellant would submit that it is admitted by the respondent that since 2010 the respondent is not in touch with the appellant, further, they do not have any relationship of husband and wife. He would further submit that the respondent in her testimony has categorically stated that she is not prepared to stay in the joint family of the appellant. Further, the appellant has agricultural property in his own name, therefore, she wants to live separately with her husband and not along with other family members of the appellant. She would further dispose that she is not prepared to stay with the parents of the appellant for the reason that wife of the elder brother (Jethani) is residing with them, therefore, would state that the appellant should alongwith his parents live separately and in that eventuality she is prepared to stay with him. This is a stand taken by her before this Court also.

In this backdrop, learned counsel for the appellant would submit that there is a complete break down of marriage due to the insistence and stubbornness of the respondent to take a separate residence and live separately from the joint family. Respondent is unequivocally clear in her mind that she is not prepared to live in the joint family and therefore, in consequence insists for partition and separation from joint family which tantamounts to cruelty.

Learned counsel for the respondent would submit that she is still prepared to go with her husband and live with him, however, she is not prepared to live in the joint family establishment along with other members. The husband alongwith his parents, therefore, should separate by taking another residence from the family of the elder brother.

The point in issue is: (i) whether insistence of the wife that the husband lives separately from the joint family or separate from the joint family tantamounts to inflicting mental cruelty on the husband? (ii) whether the respondent wife deserted the appellant or is the appellant responsible for her separate living?

To consider the rival submissions, it would be appropriate to consider the pleadings and the evidence led by the parties. The appellant in para 3 pleaded that since 25 December 1999 the respondent left the matrimonial home and since then she is residing at her parental house. The marriage is of 4 December 1998. In para 4, 5 and 10 of the plaint, it is contended that the appellant and his brother are unemployed and dependent on the income coming from 25 acre agricultural land. It is appellant and his wife's obligation and duty (dharam) to take care of his old parents. In any event appellant will inherit half of the property, however, despite persuading her the respondent left the matrimonial house. In para 7, 8, 12 and 13 it is alleged that the respondent is a graduate, independent thinking and outgoing lady, unable and unwilling to perform household chores. She does not desire to live and stay in joint family setup and insists that the husband should seek partition and live separately. The appellant made several attempts, after December 1999, along with the assistance of his relatives, to bring the respondent back from her parental home but all in vain. Having due regard to the social norm appellant made several attempts to persuade the respondent by visiting her, but she refused to return, thus, depriving him of all matrimonial commitment. The in-laws were unwelcoming, therefore, the appellant never stayed over night at his in-laws house.

In response, the respondent in written statement would admit the factum of marriage, son being born from the wedlock, appellant being dependent on joint family agriculture income. In the additional plea in paras 16, 17, 18 and 19 she would state that it is wrong to say that since December 1999 she is in her parental home. The fact is that after marriage for several years she stayed in the matrimonial home along with her husband and performed her matrimonial obligation. The appellant is a son of a respectable lawyer who also has agricultural property; appellant along with his father is engaged in the sale and purchase of plots apart from agriculture. Two towers are standing on the plot of the appellant. The elder brother is also helping and assisting his father in the agriculture. The father of the appellant is a respectable person of the society. He is a landlord (Zamindar). In para 20, 22 and 26, she would deny that she is a lady of independent thought, rather, she pleads that she is still prepared to live with the husband and fulfill all her matrimonial obligation. The appellant takes alcohol and indulges in gambling, he has no concern for the respondent or his son.

Appellant in his testimony (PW-1) would depose that after December 1999 he visited his wife at her parental home several times, but never stayed at night as the behaviour of the in-laws were not good. He used to give money to his wife and son. Appellant admits cohabitation with the respondent even after 1999 which according to him ended by 2007, however, according to the respondent by 2010. Appellant has reiterated the plaint allegations and finally would state that fifteen years has passed and it is now not possible to bring her back. This one sentence of the appellant has weighed with the learned trial court which I shall deal latter.

The respondent DW-2 deposed that the appellant stays in a joint family, having 30-40 bighas of agricultural property. The elder brother and the appellant aid and assist their father in the agriculture related activity, including sale and purchase of land. Some agricultural property is in the name of the appellant. She would categorically state that she cannot agree to divorce as her husband being 'pati parmeshwar', further social norm does not permit remarriage, but would insist that she cannot live in the joint family establishment. She is prepared to stay with the husband provided he separates from the family.

Before this Court the parties have taken the same stand during conciliation. The lady would insist separation of her husband from the joint family as a condition precedent for going back to him. The husband would submit that separation and partition is not possible and since more than fifteen years has passed it is no longer possible to continue the relationship.

From the pleadings and oral evidence, the admitted position is that the lady left her matrimonial home on her own pretext that she cannot live in a joint family setup. To return to her husband, she insists that her husband should separate from the joint family, rather, she would insist for partition by stating that the appellant has some land in his name, therefore, should move out of the joint family establishment. She, however, has no problem if his parents come along with him. The respondent does not give any date or year when she left her matrimonial home. She only says that she stayed in the matrimonial home for five to six years after marriage, whereas, the appellant has stated that after December 1999 the respondent left. It is also admitted between the parties from their respective testimony that the appellant at intervals visited the respondent and his son at his in-laws house. The respondent, however, never denied physical access, which continued until filing of the suit, whereas, according to the respondent it continued even after filing of the suit until 2010. The trial court in my opinion was justified in rejecting the ground of legal desertion. The conditions for desertion in the given facts was not proved. But in my considered opinion the trial court committed an error in rejecting the ground of mental cruelty.

The pleadings and evidence should to be considered as a whole and by not picking one or two sentence from the testimony of the respondent or the appellant to arrive at a conclusion. The respondent insists that the appellant should separate from the joint family. She cannot reside in the joint family with others. She left her matrimonial home for that reason. This is her consistent stand even before this Court. There is no allegation of any cruelty or harassment being meted to her at the hands of the appellant or his family. She admits in her statement that her husband is a good person, occasionally takes alcohol. She retracts from her pleading assertion that he indulges in gambling.

In my opinion, normally no husband would like to separate from aged parents and other family members, moreso, jointly engaged in common agricultural activity and dependent upon the income being generated from such activity. The persistent insistence of the respondent to pester the appellant to separate from the joint family would not only be torturous for the husband but would in effect tantamount to uprooting himself from the family setup which is knit and held by joint activity based on agriculture. Appellant and his brother are both dependent upon the agricultural income. The appellant has pleaded that ultimately he would inherit half of the property. In my opinion, therefore, the trial court was not justified in coming to a conclusion that such a conduct of the respondent that she merely insists to stay separate from joint family does not construe an act of cruelty.

It is admitted that the family of the appellant is a joint family, virtually maintained from the agriculture income of the father. The two brothers i.e. appellant and his elder brother and his family are dependent upon the agricultural activity and income, therefore, both brothers live alongwith their aged parents.

In this backdrop, the respondent insists that her husband separate from his brother or primarily from the family and have an abode of his own. It is not a common practice or desirable culture for a hindu son in India and in particular considering the agrarian background to get separated from the parents upon marriage at the instance of the wife. Specially, when the son is totally dependent on agricultural activity of the family. Stigma is cast upon the son in the event he separates from his parents at the instance of his wife. Further, it is not the case of the respondent that though certain land is in the name of the appellant, it is self acquired and not a joint family property. The son is brought up and given education by his parents with an obligation to take care and maintain the parents when they become old and when they have either no income or have meager income. The son maintaining his parents and carrying forward agricultural activity of the family which is a matter of rule in a joint family based on agriculture. The respondent is living in her parental home and insists to return to her husband only when the appellant is prepared to separate from the joint family.

Cruelty has not been defined under the Act, the word has been used in relation to human behaviour and conduct. Ultimately it has to be inferred taking in view the overall conduct and behaviour and its effect upon the complaining spouse.

In Shobha Rani Vs. Madhukar Reddi2, Apex Court held as follows:-

"4. Section 13(1)(i-a) uses the words "treated the petitioner with cruelty". The word "cruelty" has not been defined. Indeed it could not have been defined. It has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. .............................................It is a question of fact and degree. If it is mental, the problem presents difficulty. First, the enquiry must begin as to the nature of the 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."

In GVN Kameshwara Rao Vs. G. Jabillia3, the Apex Court held as follows:-

"12. The Court has to come to a conclusion whether the acts committed by the counter-petitioner amount to cruelty, and it is to be assessed having regard to the status of the parties in social life, their customs, traditions and other similar circumstances. Having regard to the sanctity and importance of marriages in a community life, the Court should consider whether the conduct of the counter- petitioner is such that it has become intolerable for the petitioner to suffer any longer and to live together is impossible, and then only the Court can find that there is cruelty on the part of the counter-petitioner. This is to be judged not from a solitary incident, but on an overall consideration of all relevant circumstances." (V. Bhagat Vs. D. Bhagat (Mrs)4.

The question whether the misconduct complained of constitutes cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances. The Hindu Marriage Act does not define cruelty. It is a course of conduct of one which is adversely affecting the other.

In Samar Ghosh Vs. Jaya Ghosh5, the Apex Court has enumerated instances of cruelty for guidance:

"101. "No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.

(i)..................................

(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.

(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.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii)..................

(viii)..................

(ix)....................

(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 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.

xx xx xx xx

xx xx xx xx

(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." (Refer: Vishwanath Vs. Sau. Sarla Vishwanath Agrawal6)

Section 13(1)(i-a) of the Act is comprehensive enough to include cases of physical as also mental cruelty. Modern view has been that mental cruelty can cause even more grievous injury and create in the mind of the injured spouse reasonable apprehension that it will be harmful or unsafe to live with the other party. The principle that cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence is of greater cogency in cases falling under the head of mental cruelty. Thus mental cruelty has to be ascertained from the facts. Though no uniform standard can be laid down for the guidance, yet certain instances of human behaviour may be relevant in dealing the cases of 'mental cruelty'.

When the respondent gives priority to her independence over her husband's family it points unerringly at disharmony, diffusion and disintegration of marital unity, from which the Court can deduce about irretrievable breaking of marriage.

From the analysis and evaluation of the entire evidence, it is clear that the respondent has resolved to live in agony only to make life a miserable hell for the appellant as well. This type of adamant and callous attitude, in the context of the facts of this case, leaves no manner of doubt in my mind that the respondent is bent upon treating the appellant with mental cruelty. It is abundantly clear that the marriage between the parties had broken down irretrievably and there is no chance of their coming together, or living together again unless the husband satisfies the condition imposed upon him by the respondent. The trial court in its reasoning has primarily relied upon the statement of the appellant that 15 years has since lapsed and it is now not possible for the appellant to bring the respondent back to arrive at a conclusion that the appellant himself has declined the association of the respondent.

The reasoning, in my opinion, is an misreading of the pleadings and the testimony of the respective parties as a whole. The respondent has not denied that the appellant has been visiting her at her parental home from time to time, further, the appellant has pleaded and stated that the respondent is not prepared to return to the matrimonial home due to her adamant stand seeking separation from the joint family establishment. It is in this backdrop, appellant would state that in the circumstances since more than 15 years have passed he is not in a position now to convince or persuade the respondent to return to the matrimonial home. The statement of the appellant in isolation would mean that he is insisting in not bringing the respondent back, whereas, on the totality of the events I am convinced that appellant has given up the hope that the respondent would return to her matrimonial home. Due to her adamant and persistent attitude to break and move out from the joint family establishment, in which the appellant is situated, is not possible, as long as, his father is alive.

In Narendra Versus K Meena7, in the given facts High Court found some justification in the request made by the respondent-wife to live separately from the family of the husband. Supreme Court reversed the decision of the High Court and upheld the decision of the trial court. In para 11 of the report Court observed as follows:

"A son maintaining his parents is absolutely normal in India culture and ethos. There is no other reason for which the respondent wanted the appellant to be separated from the family-the sole reason was to enjoy the income of the appellant. Unfortunately, the High Court considered this to be a justifiable reason............. In a Hindu society, it is a pious obligation of the son to maintain the parents. If a wife makes an attempt to deviate from the normal practice and normal custom of the society, she must have some justifiable reason for that..........................In our opinion, normally, no husband would tolerate this and no son would like to be separated from his old parents and other family members, who are also dependent upon his income. The persistent effort of the respondent wife to constrain the appellant to be separated from the family would be torturous for the husband and in our opinion, the trial court was right when it came to the conclusion that this constitutes an act of 'cruelty'."

In my opinion, it tantamounts to mental cruelty upon the son. It is practically impossible in joint agrarian setup, where the family normally and generally together undertakes to earn living from joint agricultural activity. The family resides under one roof though may be having separate space within the extended household. But in the facts of the present case, it is admitted in the testimony of the respondent that she is not prepared to live in the joint family unless husband separates and breaks from the joint family. If the wife makes an attempt to deviate from the course of social norm, then she should have some justifiable reason for that. In the given facts and evidence I do not find any justifiable reason except asking the husband to break from the joint family, which being a condition precedent to restore her matrimonial life with the husband.

Having due regard to the pleadings, facts and evidence of the case in hand, I am of the considered opinion that the appellant has been able to prove mental cruelty caused to him by the respondent. The finding returned by the trial court to that effect is accordingly reversed, the appellant husband is entitled to be granted a decree of divorce.

The offence of desertion in the context of matrimonial law has been explained in Adhyatma Bhattar Alwar Vs. Adhyatma Bhattar Sri Devi8, the Apex Court held as follows:-

"Desertion in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term. The essential ingredients of this offence in order that it may furnish a ground for relief are :

1. The factum of separation;

2. The intention to bring cohabitation permanently to an end animus deserndi;

3. The element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period; The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately preceding the presentation of the petition. This clause has to be read with the Explanation. The Explanation has widened the definition of desertion to include willful neglect of the petitioning spouse by the respondent. It states that to amount to a matrimonial offence desertion must be without reasonable cause and without the consent or against the wish of the petitioner. From the Explanation it is abundantly clear that the legislature intended to give to the expression a wide import which includes willful neglect of the petitioner by the other party to the marriage. Therefore, for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (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. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively and their continuance throughout the statutory period."

The Apex Court in Ramani Vs. Saraswathi9, has held as follows:-

"8. The question whether the wife was guilty of desertion or not is essentially a question of fact..............."

Appellant pleaded that the respondent left the matrimonial home in 1999, whereas, the respondent pleaded that she stayed in the matrimonial home for four to five years after marriage. Appellant in his testimony admitted that the respondent never refused cohabitation after 1999 and it continued until 2007, whereas, the respondent would contend that until 2010 i.e. even after the institution of the suit/petition, witness D.W.-2, D.W.-3 and D.W.-4 have stated that the respondent is living with her parents for the past four to five years, further, at times appellant was seen visiting the respondent. Therefore, separation to bring cohabitation permanently to an end has not been proved by the appellant, though the appellant is not responsible for her separate living at her parental home. The finding returned by the trial court on the ground of desertion is, thereby, upheld.

As a decree is passed, the wife is entitled to permanent alimony for her sustenance. While granting permanent alimony, no arithmetic formula can be adopted as there cannot be mathematical exactitude. It shall depend upon the status of the parties, their respective social needs, the financial capacity of the husband and other obligations. (Refer: Vinny Parmar vs Paramvir Parmar10; U. Sree v. U. Srinivas11 ). While granting permanent alimony, the Court is required to take note of the fact that the amount of maintenance fixed for wife is such that she can live in reasonable comfort considering her status and mode of life she was used to live when she lived with her husband. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party. The living need not be luxurious but simultaneously she should not live in discomfort.

Regard being had to the status of the husband, the social status to which the party belong and further taking note of the maintenance already being paid to the respondent, I think it would be appropriate to fix one time permanent alimony at Rs. 15 lacs which shall be deposited before the court below within a period of four months from date. Out of which, Rs. 5 lac shall be kept in a fixed deposit in the name of the son in a nationalized bank earning maximum interest which would be utilized for his benefit. The balance Rs. 10 lacs shall be paid to the respondent.

The appeal is allowed, accordingly, suit is decreed on the ground of mental cruelty.

No cost.

Order Date :- 28.08.2017

K.K. Maurya