Rajesh Kumar Srivastava vs Smt. Manisha Srivastava
2019 Latest Caselaw 4126 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

 RESERVED
 
Court No. -32 						      
 

 
Case :- FIRST APPEAL No. - 920 of 2017
 
Appellant :- Rajesh Kumar Srivastava
 
Respondent :- Smt. Manisha Srivastava
 
Counsel for Appellant :- Girija Shankar Srivastava,Sharad Kumar
 

 
Hon'ble Shashi Kant Gupta,J.

Hon'ble Pradeep Kumar Srivastava,J.

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

1. This first appeal has been preferred against the judgment and order dated 01.11.2017, passed by Principal Judge, Family court, Varanasi, in Divorce Petition No. 1310 of 2016 (Rajesh Kumar Srivastava vs. Manisha Srivastava), under Section 13 of the Hindu Marriage Act, by which the petition for divorce, though proceeded ex-parte, has been dismissed.

2. A petition was filed by the appellant-petitioner before the Family court seeking divorce under Section 13 of the Hindu Marriage Act, stating that both the parties are married according to Hindu religion, rituals and traditions. The respondent-opposite party after marriage came to her matrimonial house and discharged her matrimonial obligations. The appellant-petitioner from the very beginning gave her love and affection but the respondent-opposite party was very ambitious, arrogant and obstinate by nature.Her behaviour was always aloof and she avoided her family responsibility. Whenever his parents and close relatives came, instead of welcoming them, she used to deliberately insult him before them. Even then he continued accommodating her without any complaints. She, however, remained quarrelsome with him. The petitioner always fulfilled her demand legitimate or illegitimate so that the harmony in the family may continue but her nature was not improving and without his consent, she started wandering out side the house and on being inquired, she used to start quarreling with him even before the neighbours causing shame to him. A son was born to them and he, keeping in view the future of the child, always tried to persuade her to discharge the matrimonial and family obligations. But she always remained problematic conveying everything to her parents and brothers, who started interference in their matrimonial life. She abused and threatened him for giving divorce. From the last two years, there is no consummation between them despite efforts being made by him. They are living separately from the last two years and there is no communication between them. The respondent-opposite party is living in her house and the appellant-petitioner has to manage his all daily needs by himself. It has become impossible to continue in the matrimonial relationship with her. She used to threaten him for implicating him in false criminal cases and also that she will commit suicide. She gave an application under Section 156(3) Cr.P.C. against him and his family members. Her application was sent for mediation. On the resolution made by the mediation, the appellant-petitioner took her back on 22.08.2015. She lived with him for about two months and thereafter on 6.10.2015, she called her mother and brother and lodged a FIR in PS Sadar, Hoshiyaarpur, Punjab and came back to her parental house. On 26.10.2015, she filed an application under Section 125 Cr.P.C. in District Kanpur. Finally, on 26.10.2015, she refused to live with him and to give him his child. Because of her inhuman and cruel treatment and desertion on her part, this divorce petition was filed under Section 13 of the Hindu Marriage Act for seeking divorce.

3. The case was proceeded ex-parte against the respondent-opposite party.

4. In support of his case, the petitioner filed his affidavit in evidence.

5. After hearing the counsel for the petitioner, the learned family court dismissed the petition.

6. Aggrieved by the impugned judgment and decree, the present appeal has been preferred on the ground that it is illegal, without jurisdiction and based on surmises and conjectures. The findings recorded by the Principal Judge, Family Court is baseless, perverse, irrational and unreasonable. The divorce petition proceeded ex-parte as respondent-opposite party did not appear nor filed any written statement and despite the affidavit filed by the appellant-petitioner in support, the same was disbelieved and without any sound reason, the petition was dismissed. As such, the impugned judgment and decree is illegal, perverse and is liable to be set aside.

7. Heard the learned counsel for the appellant and perused the record.

8. It appears that the petitioner has sought divorce on the ground of desertion and cruelty.

Desertion

9. Section 13(1)(i-b) of the Hindu Marriage Act provides desertion a ground for divorce and it reads as follows:

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

Explanation: In this sub-section the expression 'desertion' means the desertion of petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes willful neglect of the petitioner by the other party to the marriage...."

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

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

12. In para 9 & 10 of the petition, it has been pleaded by the petitioner that the respondent-wife gave an application under section 156(3), Cr.P.C. in Kanpur and the matter was referred to mediation and as per resolution of mediation, the respondent came with petitioner on 22.8.2015 and they lived together for two months. After two months on 6.10.2015, she called her brother, lodged a written complaint in PS. Sadar, Hoshiarpur and returned to her parents. She filed a case under section 125, Cr.P.C. on 26.10.2015 and finally refused to live with her. The same thing has been repeated by him in the affidavit filed in evidence. After resumption of matrimonial status in pursuance of resolution of Mediation from 22.8.2015 to 6.10.2015, the earlier separation becomes irrelevant on the basis of the principle of condonation and forgiveness. The desertion will continue either from 6.10.2015 when the wife left the matrimonial home or on 26.10.2015 when she finally refused to live with the petitioner. Counting from either date, the petition being filed on 29.10.2016 just after about one year, the mandatory period of minimum two years desertion prior to presentation of petition is not complete, and as such the petition is immature on the ground of desertion.

Cruelty

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

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

15. In Para 13 of the petition, the petitioner has alleged that the respondent demonstrated cruelty and inhuman behaviour. But, whatever facts alleged by him constituting cruelty is prior to 22.8.2015. On 22.8.2015, in pursuance of mediation, the matrimonial status was restored which continued till 6.10.2015. Prior to this period whatever has been alleged regarding her quarrelsome and humiliating attitude or her threatening to commit suicide, in absence of any effort made by her towards commission of suicide, is nothing more than routine wear and tear of matrimonial life. No cruelty has been alleged during the period after resumption of matrimonial status in pursuance of resolution of Mediation from 22.8.2015 to 6.10.2015. Once the matrimonial status was restored, the allegation of cruelty and desertion prior to this period cannot be taken into account on the basis of the principle of condonation and forgiveness. It has been alleged in Para 9 of the petition that on 6.10.2015, she called her brother, lodged a written complaint in PS. Sadar, Hoshiarpur and returned to her parents. But he has not filed the copy of that complaint nor he has stated what was written in that complaint or what action was taken by police in pursuance of that complaint and therefore, it is not possible to determine whether the same constituted cruelty.

16. The UP Amendment in Section 13 of the Hindu Marriage Act by which (1-a) has been substituted as follows:

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

17. Even for the sake of argument, if it is assumed that there is some element of of cruelty, the same does not amount to cruelty as to cause reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party in view of the aforesaid Amendment. This has been neither pleaded nor proved by the petitioner.

18. On the basis of above discussion, we find that the petitioner plumply failed to establish his case for divorce on the basis of cruelty and desertion and the appeal is liable to be dismissed.

19. The appeal is dismissed.

20. In the last, we are constrained to mention a phenomenon in the Family Courts in the State that affidavits of the parties are admitted as evidence in place of examination-in-chief. Where both the parties are appearing, the other party has the opportunity of cross-examination which can to some extent compensate the lapse and provide some assistance in arriving at correct conclusion. But, where the case is proceeding ex-parte, deciding the case on the basis of affidavit will frustrate the very concept of matrimonial justice administration and the very purpose for which Family Courts have been created by the Family Courts Act. Section 10 of the Family Courts Act provides for 'Procedure generally' and permits applicability of the Civil Procedure Code and Criminal Procedure Code subject to the other provisions of this Act. Sub-section (3) further permits the family courts to lay down its own procedure to arrive at a settlement or at the truth of the facts alleged by one party and denied by the other. Section 14 permits the court to receive as evidence any report etc. that may assist the court to deal effectually with a dispute whether or not the same would be otherwise relevant or admissible under the Evidence Act. Section 15 and 16 are very important which are as follows:

"15. Record of oral evidence- In suits or proceedings before a Family Court, it shall not be necessary to record the evidence of witnesses at length, but the Judge, as the examination of each witness proceeds, shall, record or cause to be recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the witness and the judge and shall form part of the record.

16. Evidence of formal character on affidavit- (1)The evidence of any person where such evidence is of a formal character, may be given by affidavit and may, subject to all just exceptions, be read in evidence in any suit or proceeding before a Family Court.

(2) The Family Court may,if it thinks fit, and shall, on the application of any of the parties to the suit or proceeding summon and examine any such person as to the facts contained in his affidavit."

21. A similar provision is incorporated in the Allahabad High Court Hindu Marriage and Divorce Rules, 1956. Rule 15 reads as follows:

"15. Mode of taking evidence- The witness in all proceedings before the court, where their attendance can be had, shall be examined orally and party may offer himself or herself as a witness and shall be examined and may be cross-examined and re-examined like any other witness.

Provided that the parties shall be at liberty to verify the respective cases in whole or in part by affidavit, but so that the deponent in every such affidavit shall, on the application of the opposite party or by direction of the Court, be subject to be cross-examined by or on behalf of the opposite party orally and after such cross-examination may be re- examined by or on behalf of the party by whom such affidavit was filed."

22. Thus, the thrust has been on oral examination of the parties and in no case where the proceeding is ex-parte, evidence on affidavit is not visualized nor permissible. We are aware that the Civil Procedure Code has been subsequently amended permitting affidavits of parties in place of examination-in-chief. Section 10 of the Family Courts Act permits applicability of the Civil Procedure Code and Criminal Procedure Code, but the same is subject to the other provisions of this Act, and the Act and the Rules specifically provide for oral testimony of parties. In Anil Kumar Lal vs Addl. Principal Family Judge, Lucknow, (2009) 74 ALR 135, this Court has held that section 15 and 16 clearly disclose the intention of the legislature that the evidence of formal character alone can be permitted to be given on affidavit and not other oral evidence. Separate provision for giving of evidence of formal character on affidavit leads to the conclusion that giving of oral evidence on affidavit is excluded in view of section 15 of the Act.

23. There is one more reason for requiring oral evidence. In matrimonial dispute, a personal touch of the judge is necessary which helps the court to assess the real dispute between the parties in view of their personal character and social background. The demeanor of the witnesses have to be watched to assess their credibility. The life and future of the parties are at stake and such disputes should not be treated on par with property disputes. Matrimonial cases raising questions pertaining to cruelty, desertion, child custody, adultery or the like are sensitive issues and can be better adjudicated only when the witnesses are examined or cross-examined before the face of the judge presiding over the family court. This is also necessary to explore the possibility of re-conciliation between the parties, a process which continues and ought to continue until the suit is finally disposed of.

24. The record of the court below be sent back with a copy of judgment for information and necessary compliance.

25. The Registrar General, High Court, Allahabad, is directed to circulate this judgment in all subordinate courts of the state, particularly the Family Courts for future guidance.

Order Date :- 06.05.2019

sailesh

(Pradeep Kumar Srivastava, J) (Shashi Kant Gupta, J.)