Smt. Laxmi Das vs Arun Kumar
2022 Latest Caselaw 5884 Chatt

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      HIGH COURT OF CHHATTISGARH, BILASPUR
                           FA(MAT) No. 25 of 2022
      Smt. Laxmi Das W/o Shri Arun Kumar, Aged About 49 Years, R/o
      Bhiyathan, Davansara, Post-Devna, Distt. Surajpur, Civil And
      Revenue Distt. Surajpur, At Present Bagalipara Sarkanda, Lane No.
      4, Chintaram Shastri's House, Bilaspur, Tahsil And District Bilaspur
      Chhattisgarh.                                      ---- Appellant
                                 Versus
      Arun Kumar S/o Shri Devdas Aged About 57 Years, R/o Qt. No.
      B/136 B Type, Urja Nagar, Deepika, Post- Deepika, P.S. Deepika,
      Tahsil - Katghora, District Korba Chhattisgarh.
                                                  Respondent
      _____________________________________________________
For appellant- Shri M.K. Sinha, Advocate alongwith Laxmi Das & two
children.
For respondent - Shri Manoj Paranjpe and Shri Anshul Tiwari, Advocates
alongwith Arun Kumar & other.

                Hon'ble Shri Justice Goutam Bhaduri &
               Hon'ble Shri Justice Radhakishan Agrawal
                              Judgement


Per Goutam Bhaduri, J.

20/09/2022 Heard.

1. Instant appeal is against the judgment dated 30 th September, 2021

passed by the Family Camp Court, Katghora, District Korba in Civil Suit

No.63-A/2021 whereby the application filed by the husband under Section

13 (i-b) of the Hindu Marriage Act, 1955 on the ground of cruelty has been

allowed. The instant appeal is by the wife against such judgement and

decree.

2. The brief facts as pleaded by the husband Arun Kumar, the

respondent herein is that the parties were married on 14/05/1987 at

Chirmiri. After the marriage, the wife joined the company of husband.

Subsequently, they started living at SECL Korba Colony at Gevra. Out of

such wedlock, son and daughter were born namely Sonam and Krishna

Das and they are presently residing with the appellant mother. The

husband contended that maintenance amount was being paid. It is

pleaded during their time together despite all comfort provided by the

husband, the wife developed a relation with one Santosh Tiwari and illicit

relation were developed. The husband tried to make her understand but

she did not improve her conduct, eventually an application was filed in the

year 2008 under Section 13 of the Hindu Marriage Act for divorce. The

said application was dismissed. Thereafter, the wife lodged a complaint

under Section 498-A of IPC and on such complaint a charge sheet was

also filed but eventually the husband was acquitted by the Judicial

Magistrate First Class, Katghora in respect of the charges clamped.

3. The husband further contended that the wife did not improve her

conduct and continued to misbehave with him and an application was filed

for maintenance under the provisions of Cr.P.C. Lastly on 15/11/2000 the

wife left the husband without any lawful cause, therefore she had deserted

the husband. The husband further contended that he is suffering with high

BP and sugar but knowing full well those physical condition, the wife did

not improve her conduct which too amount to cruelty. Consequently, an

application for divorce was filed before the Family Court, Korba and

sought for divorce.

4. Perusal of the record of family court would show that the notices

were issued to the wife and eventually the publication was made at News

paper notifying the date of hearing on 22/09/2021, but the wife did not

appear and as such she was proceeded ex-parte and ex-parte decree was

passed. Challenging the said judgement and decree, the instant appeal is

by the wife.

5. Learned counsel for the appellant would submit that because of the

fact that she was subjected to torture and allegations were made

questioning her fidelity, she was subjected to torture. It is further contented

that the husband kept another lady and out of such relation, a child was

born who is 10 years of age as on date, which would go to show that

before the decree of divorce, the husband was in relation with third lady

out side the marriage and that was the cause on false pretext divorce was

sought for. He would submit that the statement of the witness further

would go to show that no evidence was before the family court to grant a

decree of divorce and the family court completely misdirected itself

whereby the application filed by the husband was allowed granting

divorce.

6. Per contra, learned counsel for the respondent would submit that

the allegations which were levelled by the husband against the wife were

proved. He would submit that despite notice of the petition before the

family court, she deliberately choose not to appear. He would further

submit that the publication notice was also made at last and there is no

reason as to why the statement of the husband cannot be believed.

Learned counsel further submits that false report was made under Section

498-A of IPC which eventually resulted into acquittal which would show

the cruelty on the part of the wife. It is further contended that the wife left

the husband without any lawful cause and never made any attempt to

resume the marriage, as such the order of the learned court below is well

merited which do not call for any interference.

7. We have heard the learned counsel for the parties. Appellant/wife

along with the children and the respondent/husband also appeared in

person. They made their submission too.

8. Perusal of the record of the trial court would show that after the

application was filed by the husband before family court, on 23/03/2021

notices were issued. Registered notice issued to the respondent/wife did

not return, as such application was filed on 20/07/2021 to publish the

summon to cause notice to the wife through the publication in paper.

Subsequently, on 22/09/2021 publication was made but the wife did not

appear. Consequently, ex-parte proceeding was drawn. Perusal of the

order sheet and record would show that initially the registered notice was

issued to the appellant/wife and subsequently since it did not return back,

paper publication application was allowed and in daily news paper the

publication of the summon was effected. There is no plausible reasons

exist on record or ground in memo of appeal as to what was the genuine

reason not to appear before the family court by the wife/appellant.

Therefore, without any sufficient cause it appears that she choose not to

appear despite the fact there were several litigations were pending in

between the parties. As a necessary fall out of the proceeding, it appears

that the ex-parte proceeding which was drawn by the learned court below

on 22/09/2021 was justified.

9. The second aspect of this issue as to whether the judgement and

decree passed by the learned court below is based on admissible proper

evidence or not? To find the same, we went through the application of the

husband filed under Section 13(i-b) of the Hindu Marriage Act alongwith

the evidence. The husband in his statement has alleged that the wife was

in relation with one person out side the marriage, as such he filed an

application initially in year 2008 under Section 13 of the Hindu Marriage

Act but the same was dismissed. Said application has been exhibited as

Ex. P-2. The averments of the said application which was a subject

matter of earlier litigation was dismissed by the family court by its order

dated 3rd November, 2008 in Civil Suit No.4-A/2008 by the Family Court,

Katghora, vide Ex.P-3, therefore the allegation that the wife was in relation

with a person out side the marriage was not proved.

10. The husband further stated that after such dismissal without any

reason a report was made to the police by the wife under Section 498-A of

IPC for which the husband suffered a trial. Perusal of Ex. P-6 judgement

dated 22/09/2005 passed by the Judicial Magistrate, Katghora in between

State Vs. Arun Kumar the respondent/husband herein would show that he

was acquitted as against Section 294, 506 and 498-A of IPC, however a

fine of Rs.500/- was imposed under Section 323 of IPC. Allegation of

demand of dowry was not proved before the trial court.

11. Another application for maintenance which was filed by the wife

and two children was decided and maintenance amount of Rs.4000/- was

granted. Subsequently, said maintenance which was being granted to the

children Ku. Sonam and Krishna Das was nullified by order dated

12/10/2018 marked as Ex.P-7. The allegation in between the parties

would show that the parties were living separately and in the statement of

PW-1 the husband, it is stated that the wife had left the husband since

15/11/2000. Other two witness PW-2 Vinod Patel and PW-3 Kishore Singh

Thakur @ Bittu have narrated the same thing the fact that the wife is living

separately since 2000. The facts as cropped up would show that the

husband has made allegation on the wife that she was in relation with third

person out side the marriage. Same has been dismissed when the

application was filed seeking divorce on that ground. As against this, as a

counter report, the wife filed a complaint under Section 498-A IPC read

with Section 294, 506 and 323 of IPC, however the husband was

acquitted of the charges except the charges under Section 323 of IPC.

12. The Supreme Court in the matter of Rani Narasimha Sastry v.

Rani Suneeta Rani 2019 SCC OnLine SC 1595 has observed that when

a prosecution was lodged against the husband on a complaint made by

the wife under section 498-A of IPC making serious allegation wherein the

husband was constrained to undergo the trial which ultimately resulted

into acquittal, then in such case, it cannot be accepted that no cruelty was

meted out to husband. In the instant case, however the conviction was

maintained under Section 323 of IPC, therefore partly the allegation of the

wife may be correct but the nature of allegations of demand of dowry and

threat was found to be incorrect.

13. The Supreme Court in Samar Ghosh Versus Jaya Ghosh (2007)

4 SCC 511 has indicated the illustrative inference of mental cruelty. Few of

the incidents are quoted below.

"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) 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.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

(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.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(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) 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.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.

(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.

(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly, f the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

(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."

When the husband and the wife have levelled the allegation of like

nature on each other, it shows the mental state of mind of each other

which would lead to an inference that they cannot live together.

14. This court while examining the issues cannot ignore the fact that

both husband and wife are living separately since 21 years. The nature of

allegation and counter allegation and the fact of acquittal of husband

under Section 498-A of IPC cannot be ignored or shelved as ultimate

result was in acquittal. For all practical purpose, it shows that the marriage

has come to an end as the wife cannot rejoin the company of husband.

Therefore, we are of the view that decree of divorce granted by the court

below deserves to be affirmed on the ground of cruelty.

15. During the course of submission before this court both the parties

when appeared it is stated that after decree of divorce on 30 th September,

2021 husband has married on 5/10/2021 & during the discourse it is

stated that out of the second marriage a child was born who is now 10

years of age. Therefore the possibility of reunion is beyond scope of

imagination and state of conduct shows that there is irretrievable break

down of marriage too.

16. Before this Court affidavits have been filed by both the

appellant/wife and the husband/respondent to show their financial

capacity. The affidavit of the wife shows that presently she is not earning.

Initially she was a teacher in a private school wherein she was getting an

amount of Rs.1500/- per month and affidavit states however since she

suffered accident, she has to leave the job. The affidavit of the husband

shows that he has retired and retiral benefit of Rs.48,48,036/-as a

provident fund has been received. Further Rs.20 lakhs has been received

as gratuity and it has been orally submitted that around Rs.2 lakhs would

be received as a leave encashment whereby a consolidated amount

appears to be of Rs.68 lakhs has been received by respondent/husband

and further 2 lakhs would be paid making it 70 lakhs. It is been further

stated that at present the respondent is not getting any pension and is

entitled of pension to the tune of Rs.27,752/- per month and because of

the interim order passed by this Court on 7/02/2022 the same is not been

released.

17. Several efforts of mediation have failed. The Supreme Court in the

case of (2012) 7 SCC 288 in between Vishwanath Agrawal Vs. Sarla

Vishwanath Agrawal has observed that in respect of grant of permanent

alimony the factors which are required to be considered are social status,

conduct of parties, way of living of spouse and other ancillary aspects.

Therefore, keeping in view the totality of the circumstances and social

strata from which the parties come from and the amount so received by

the respondent/husband till date, we deem it proper to grant an amount of

Rs.25 lakhs to the appellant/wife which would be payable by the

respondent/husband. The amount shall be paid within a period of two

months. Further the wife/appellant shall be entitled to an amount of

Rs.10,000/- per month from the pension which would be received by the

husband. The interim maintenance which the appellant/wife is receiving of

Rs.4000/- would be inclusive of the amount of Rs.10,000/-.

18. It is made clear that the respondent/husband shall be entitled to

receive the pension henceforth as no interim stay would be operative.

19. With such observation, the appeal stands disposed of.

20. A decree be drawn accordingly.

              Sd/-                                                   Sd/-
        (Goutam Bhaduri)                                  (Radhakishan Agrawal)
            Judge                                                 Judge


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