Jharkhand High Court
Gautam Mahanty vs Smt. Jayshree Mahanty on 9 February, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No. 52 of 2007
Gautam Mahanty ... ... ... Appellant
Versus
Smt. Jayshree Mahanty ... ... Respondent
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CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh
Hon'ble Mrs. Justice Anubha Rawat Choudhary
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Through: Video Conferencing
For the Appellant : In person
For the respondents : Mr. Rohitashya Roy, Advocate
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40/09.02.2021 Heard the appellant is person and Mr. Rohitashya Roy for
the respondent.
2. The appellant is in appeal against the dismissal of Title
(Mat) Suit No. 13 of 2003 vide judgment dated 30.03.2007, decree
dated 09.04.2007, passed by the learned Principal Judge, Family
Court, Bokaro, whereby the suit for divorce on the grounds of
cruelty and desertion under Section 13 of the Hindu Marriage Act,
1955 has been dismissed.
3. The case of the appellant briefly stated as under:
The appellant and the respondent are Hindus and are
governed by the provisions of Hindu Marriage Act, 1955. The
marriage between appellant and respondent was solemnized on
09th May, 1997 at Manbazar, at the house of the defendant as per
Hindu rites and customs. Thereafter out of the wedlock, a female
child was born in the month of November, 1998 at Bankura
Sammilani Medical College. At that point of time, the appellant
was posted as Executive Engineer, in Damoda Colliery and had
been allotted an official quarter by the BCCL authorities. After
marriage, he took his wife and daughter to his official quarter with
lots of sweet conjugal dreams. The parents of the appellant
welcomed the respondent in the matrimonial home and all sorts of
co-operation was extended to the newly wedded bride so that she
could adjust herself. The behaviour of the wife, respondent herein,
since the first day she came to her matrimonial home at Bokaro,
was very peculiar and repulsive towards the appellant as well as to
the parents of the appellant. Appellant was very shocked due to
such disrespectful behaviour of his wife towards his parents and
others but he kept silent. The appellant after observance of "Asta-
Mangala" went to Kathmandu (Nepal) with his wife for
honeymoon but faced serious trauma from the behaviour of his
wife (respondent herein). The latter's approach towards the
appellant was totally unpredictable and the respondent used to be
totally withdrawn. She showed absolute indifference towards her
family obligations and did not even respond to the calls of the
appellant. The appellant in order to have peace and tranquillity
used to concede to all irrational demands and desires of the
respondent but marital relationship instead of improving steadily
deteriorated due to uncompromising behaviour and capricious
attitude of respondent. The appellant in his sincere endeavour to
pacify his wife even had to face slaps and fists besides abusive
languages. Repeated recurrence of such ill-temperament even in
presence of parents and the friends of the appellant made the life of
the appellant hell. The appellant being the only son of his parents
felt extreme mental humiliation and in order to relieve his parents
shifted the respondent to Damoda at his place of work. The
respondent was extremely reluctant to accompany the appellant for
attending any invitation, social gathering and even officer's family
meet. The respondent on most of the days for no reasons did not
cook or arrange food for the appellant. On asking for reasons for
the same, the respondent used to attack the appellant physically
causing even bodily harm due to infliction of scratches with nails.
The appellant in such state of affairs sought for intervention of his
parents-in-law but instead of improving the situation it worsened to
the lowest ebb.
4. Lastly, the appellant, having no other alternative, requested
his parents-in-law to take their daughter for few days on the
expectation that their company and good advice might bring
changes in her behaviour and attitude of the respondent.
Respondent in the meantime conceived. However, such conception
instead of bringing change of her approach, made her all the more
cruel not only towards the appellant but also the baby in her womb.
Filthy and slang abuses, physical humiliation at the hands of the
respondent became almost a regular phenomenon in the life of the
appellant and his parents and friends were mere onlookers to his
such ordeal. The situation assumed such proportion that the
appellant felt seriously apprehensive of his personal safety and
even expressed such mental state to others. The appellant being
utterly disgusted and apprehensive had mentally broken down.
Finding him in such condition, his father requested father of the
respondent to come and to take decision. The father of the
respondent arrived and on witnessing everything arranged to take
his daughter with him with all her belongings. It was disclosed by
the father of the respondent that after smooth delivery and total
recovery of the respondent, he would send information to the
appellant for doing the needful. The respondent before her final
departure in June, 1998 was shifted by the appellant to his father's
quarters at Bokaro Steel City where she spent 7/10 days. On 2-3
occasions within those few days, Respondent on flimsy pretext
became extremely frenzied and her tantrums continued for hours.
Her target was the appellant who was not only physically
humiliated but was also abused in filthiest possible language.
Nonetheless the appellant used to keep telephonic contact to have
information about respondent. Unfortunately, he was abused by her
in such ugly way that he had to disconnect the line. Appellant was
also not given the information about the hospitalization of the
respondent and birth of the child in the first week of November,
1998. The appellant was shocked to learn that his wife has filed a
complaint before the learned C.J.M. Purulia against him, his
parents and married sister on unfounded, false and baseless
allegations. On the basis of the same, Manbazar P.S. Case No.
48/99 had been instituted under Sections 498A/406/34 of the
Indian Penal Code and Section 4/5 of the Dowry Prohibition Act
causing damage and injury to the reputation of the appellant and
his family. The conduct of the respondent became such that it had
become intolerable for the appellant to suffer any longer and it was
impossible to live together. It was averred that the respondent had
caused cruelty, physically and mentally in many ways as aforesaid
and the marital tie between the appellant and the respondent has
broken down irretrievably and could not be saved. The appellant
stated that it would not be conducive for him to continue the
marital tie. The cause of action for the suit arose within the
jurisdiction of the Family Court on 09.05.1997, when the
solemnization of the marriage took place, in the month of
November, 1998 and in December, 1999 when the respondent
initiated false and baseless criminal proceedings and on various
subsequent dates and the same is still subsisting.
Case of the Respondent:
5. The respondent stated in her written statement that there was
no cause of action for the suit and the suit is not maintainable in
the law and on facts as stated by the appellant. The respondent had
reason to believe that the father of the appellant had pressurised the
appellant to put his signature on the petition drafted as per the
dictation of the father- in-law, as the father of the respondent was
unable to satisfy the additional demand of dowry of Rs. 3 lacs for
purchasing a car. It was further stated that the appellant and the
respondent are Hindus and they are governed by the Hindu
Marriage Act, 1955. The marriage was solemnized on 9th May,
1997 at Manbazar within P.S. Manbazar and within the district of
Purulia according to Hindu rites and customs. The respondent after
marriage went to her matrimonial home and started living with her
husband as husband and wife. At the time of 'Astamangala', the
appellant and the respondent returned to Manbazar on 16 th May,
1997 and stayed for one day only. Thereafter the appellant and the
respondent started living together as husband and wife at Bokaro
in the quarter of her father-in-law from May 1997 to October 1997
except a few days when during "Durga Puja" the respondent went
to her parent's house at Manbazar. The appellant and the
respondent lived at Jamadoba in the quarter of the appellant till
March, 1998. In the meantime, respondent conceived and she was
taken to Bokaro for medical check-up. She was treated by Dr.
Limaya and other doctors. It is stated by the respondent that the
appellant used to misbehave with the respondent on the instigation
of his parents for not giving the Motor Car in the marriage by the
father of the respondent. The respondent due to torture and neglect
meted by the members of the matrimonial family seriously fell ill.
The appellant asked the respondent to write to her father for money
for medical check-up and accordingly the father of the respondent
went to Bokaro and gave Rs. 10,000/- for the treatment of the
respondent. The respondent at the time of delivery was admitted in
Bankura Sommilani Medical College Hospital and delivered a
female child in the said Hospital. The appellant and his family
members neither visited the respondent nor any information of the
respondent was taken even after the birth of the child. It is stated
that at the time of marriage, the father of the respondent had given
Rs. 2,10,000/- through Bank draft to the appellant and Rs.
1,50,000/- was fixed in the name of the respondent. Gold
ornaments worth Rs. 1,00,000/- was also given to the appellant at
the time of marriage. The appellant had demanded Rs. 3,00,000/-
for purchasing a car and due to non-fulfilment of demand, the
appellant did not take the respondent back to Bokaro where the
parents and other members of the appellant stayed. It is further
stated that the appellant on 28.11.1999 came to Manbazar and
threatened the respondent that he would not provide her shelter in
her house unless Rs. 3,00,000/- is paid. The allegations made by
the appellant at para 5 are mischievously false and motivated. The
respondent had a fixed deposit of Rs. 50000/- from before her
marriage. It is submitted that the respondent never demanded
anything or put any pressure upon the appellant at any time.
Further allegation against the appellant is that he is of
uncompromising behaviour, capricious attitude and ill tempered.
The allegation made against the respondent that she ran into
tantrums humiliating the appellant both mentally and physically
are all mischievously false and motivated. The respondent was
taken to "Damoda" his place of work to live together as his parents
thought it proper and necessary for the couple to live together. The
respondent denied all other allegations made at para 8 of the plaint.
The allegations made at para 9 were denied as equally false and
motivated. The respondent as usual used to take part in social
gatherings, officer's family meet and attended the invitation
whenever occasion arose and the colleagues of the appellant and
his family members praised the sweet behaviour of the respondent.
The respondent performed all household work, cooked and served
delicious food to the appellant. It is further stated that when the
appellant fell seriously ill during the period of conception, the
father of the respondent was called as he is a medical practitioner.
The respondent was sent as the condition of her health was very
much deteriorated. It is further stated that on one occasion, the
appellant came to Manbazar on 28.11.1999 and threatened the
respondent with demand of additional 3 lacs rupees for purchasing
car. On refusal the respondent was kicked and the appellant
attempted to kill her. As such, a criminal case had been filed at
Purulia court. The allegation of para 15 of the plaint does not
depict the correct state of things. The respondent submitted that in
view of the aforesaid facts, there was no cause of action for the suit
as the marriage was solemnized at Manbazar, within District
Purulia on 09.05.1997 as also no part of cause of action arose in
the month of November, 1998 and December, 1999.
6. Based on the rival pleadings of the parties, the following
issues were framed on re-cast by the Family Court:-
(i) "Whether the suit is maintainable in its present form?
(ii) Whether the plaintiff has got any valid cause of action for
this suit?
(iii) Whether the respondent treated the plaintiff with cruelty
and whether the respondent ever misbehaved with the
plaintiff or her in-laws during her stay at the matrimonial
home entitling the plaintiff to a decree of divorce?
(iv) Whether the plaintiff is entitled to a decree of divorce on
the ground of desertion by the defdt.?
(v) Whether the plaintiff is entitled to any other relief or
reliefs?"
7. During course of trial, appellant examined 5 witnesses,
namely, Mithileshwar Narayan (P.W.-1), plaintiff-Gautam Mahanty
(P.W.-2), Sanjay Singh (P.W.-3), Awdhesh Kumar Singh (P.W.-4)
and plaintiff's father Gopal Prasad Mahanty (P.W.-5).
Examination-in-chief were filed in the form of affidavits of the 5
witnesses and they were subjected to cross-examination.
Defendant Jayshree Mahanty examined herself as D.W.-1, Dr. Raj
Kumar Mahapatra as D.W.-2 and defendant's brother Jimut Bahan
Mahanty as D.W.-3. No documentary evidences were brought on
record by either of the parties in the case. Learned trial court
proceeded to answer each of the issues as under:-
Issues No.-(iii) relating to cruelty on the part of the
respondent was answered against the appellant. According to the
learned Family Court, petitioner/appellant herein had not
evidenced even a single circumstance and the manner in which the
respondent allegedly indulged in outburst of extreme anger, nor
was any such occasion pointed out. Such an allegation was found
to be unwarranted. Regarding institution of the case under Section
498-A of the IPC by the respondent, the learned Family Court
opined that the case was still subjudice and it would not be proper
to make any comment on the truth or falsity of the allegation
relating to torture for dowry meted out to the respondent by the
plaintiff. It was further observed that unless and until it is finally
held by judicial pronouncement that the dowry case was based on
purely concocted and baseless allegation and the prosecution was
malicious, the woman can't be held responsible for causing cruelty
by instituting a dowry case.
Learned Family Court then took up issue No.-(iv) relating to
'desertion' on the part of the respondent and decided it against the
petitioner/appellant. Learned Family Court once again observed
that it was not proper for it to pass any comment regarding the
story of torture by the defendant regarding non-payment of Rs.
3,00,000/- for purchasing a car and the stand of the respondent that
she could not go back to the matrimonial home after delivery of the
child. It also took into account that efforts for settlement through
conciliation proceeding had failed earlier though the defendant had
clearly expressed her desire to live with the plaintiff on any terms
and conditions.
Learned Family Court on consideration of the pleadings on record
and the evidence adduced by the parties observed that there was
total absence of animus deserendi on the part the defendant wife at
any point of time in the past. Therefore, physical desertion alone
could not entitle the plaintiff for a decree of divorce. Issue No-(i)
relating to maintainability was decided in favour of the plaintiff,
but issue No.-(ii) relating to a valid cause of action was decided
against him in view of the findings recorded in relation to issue
No.-(iii) and (iv). Learned Family Court also referred to the
decisions cited by the plaintiff, but opined that they were not
rendered in the similar facts of the case. Accordingly, the suit was
dismissed on context, but without cost.
8. In the impugned judgment, it was taken note of that the
respondent was getting Rs. 2,000/- per month for her maintenance
and Rs. 1,500/- for the maintenance of her daughter as
maintenance pendente lite under Section 24 of the Hindu Marriage
Act, 1955 vide order dated 15.04.2004. The plaintiff was directed
to continue the aforesaid amount for the maintenance of the
defendant and daughter until he brings them back to the
matrimonial home. During the proceedings of this appeal, vide
order dated 02.02.2016, the interim maintenance was enhanced to
Rs. 10,000/- per month in favour of the respondent wife and Rs.
5,000/- per month to the respondent's daughter. The General
Manager, Phularitand Barora Area I, BCCL was directed to deduct
Rs. 15,000/- per month from the salary of the appellant and deposit
in the bank account of the respondent.
9. In order to complete the narrative, it is also pertinent to state
here that during pendency of this appeal, the criminal case lodged
under Section 498-A r/w 34 of the IPC being G.R. Case No. 938 of
1999 (T.R. No. 1442 of 2003) by the respondent against the
appellant and his family members was decided vide judgment
dated 20.05.2011 passed by learned Judicial Magistrate 3rd court,
Purulia and brought on record as Annexure-2 to the supplementary
affidavit dated 21.08.2015 filed by the appellant. The learned trial
court held that the prosecution failed to prove the case under
Section 498-A IPC against the accused beyond the shadow of
reasonable doubts. Accused (i) Gautam Mahanty i.e. plaintiff (ii)
Gopal Prasad Mahanty (father) (iii) Urmila Mahanti (mother) (iv)
Rupali Sannigrahi (sister) were found not guilty to the accusation
against them under Section 498-A/34 of the IPC. They were
acquitted of the charges and released from their bail bonds.
10. Respondent has brought on record an order passed in Misc.
Case No. 90 of 2013 dated 12.03.2020 (Annexure-S/1) through
supplementary affidavit dated 16.12.2020. The domestic violence
case has been decided by the court of learned Judicial Magistrate,
1st Court, Purulia by the ex-parte order dated 12.03.2020. The
opposite party Gautam Mahanty (appellant) has been directed to
pay Rs. 7,000/- per month as maintenance for the petitioner-wife
and Rs. 3,000/- for his child in total Rs. 10,000/- by tenth day of
every English month without fail. He has been restrained from
inflicting any act of domestic violence upon the petitioner i.e.
respondent herein.
Appellant has pointed out that the factum relating to increase
of the maintenance amount pursuant to the order dated 02.02.2016
passed by this Court in the present appeal was not brought to the
notice of the learned Judicial Magistrate, 1st Class, Purulia, during
the proceedings in the domestic violence case.
11. Appellant has been appearing in person. He has assailed the
impugned judgment and decree inter alia on the following grounds:
That the parties lived together as spouses only for a brief
period after the marriage on 09.05.1997 till 16.06.1998 when she
was taken to her parents house. Since then till date, there has been
no cohabitation between the parties. A daughter was born on
05.11.1998 at Bankura Medical College, Bankura while the
respondent was staying with her parents. During her stay in the
matrimonial home, her conduct was oppressive and abusive
without any instigation on the part of the appellant. She refused to
cook or arrange food for the appellant and on being asked for
reasons became arrogant and aggressive at times. She also used to
throw tantrums by throwing articles which resulted in bodily
injuries. Appellant tried to maintain contact with her
telephonically, but she used to disconnect the line in an ugly
manner. He was not given any information about the
hospitalization of the respondent and birth of the child in 1 st week
of November, 1988. Appellant was shocked to learn the institution
of the criminal case being Manbazar P.S. Case No. 48 of 1999
under Section 498-A/406/34 of the IPC r/w Section 4/5 of the
Dowry Prohibition Act against himself and his parents and sister.
The respondent without any cause chose to stay away from the
matrimonial home. The appellant, his parents and his sister all
were subjected to intense humiliation on account of institution of
the false criminal case. The criminal case ended in acquittal of all
the accused persons. It was on account of such studied neglect and
indifference to the matrimonial life amounting to physical and
mental cruelty that the appellant had to institute a suit for divorce
in the year 2003 before the learned Family Court, Bokaro. The
criminal proceedings continued for 12 years leading to their
acquittal, but in the process, the appellant, his parents and his sister
suffered persecution on unfounded allegation. Even though, the
respondent was not living with the appellant since June, 1998, but
a false case under Domestic Violence Act was instituted before the
court at Purulia being Misc. Case No. 90 of 2013. The case was
decided ex-parte. The learned Judicial Magistrate, 1st Class,
Purulia was not even informed regarding the increase of
maintenance amount from Rs. 3,500/- to Rs. 15,000/- by this Court
vide order dated 02.02.2016 which amounted to suppression of
material facts from the court in a judicial proceeding. The learned
court being misled by deliberate acts of suppression was persuaded
to increase the maintenance amount which the appellant has
already been paying.
12. Appellant has referred to the deposition of the prosecution
witnesses in order to support the charge of cruelty. He has referred
to the statements made by the plaintiff (P.W.-2) at paragraphs 28,
29 and 34 in cross-examination that the respondent indulged in
blackmailing the appellant on threats of institution of false criminal
case within 7 years of the marriage and sending him to jail. She
also used to indulge in abusive language towards his father while
addressing him. It is submitted that the father of the plaintiff has
also supported the charge of cruelty perpetrated by the respondent
during her stay in the matrimonial home. She left in 2 nd week of
June, 1998 and since then has been staying with her parents. Father
of the plaintiff was not informed of the birth of the only grand-
daughter. Appellant has also narrated the factum of institution of
criminal case under Section 498-A of the IPC read with other allied
sections at paragraphs 23, 24 and 25 of his examination-in-chief.
Appellant has submitted that the learned trial court in the judgment
of acquittal has categorically held that no instances of torture were
established by any witness on the part of prosecution. D.W.-2 who
was the brother of the respondent did not appear in the criminal
case to depose in support of the allegations made by her. His
deposition during the trial of the matrimonial suit also goes to
show that he was not even sure about the year of the marriage of
his sister with this appellant. At one place, he has stated as the year
1996 and the other place he says 1997. Appellant has also taken a
plea of desertion without any reasonable cause against the
respondent. According to him, her continued absence from the
matrimonial home without any reasonable cause for more than 22
years fulfils the ingredients of animus deserendi. Appellant has
placed reliance upon the following decisions in support of the plea
of cruelty: (i) 2018 SCC Online (Jhar.) 1776; (ii) 2019 SCC
Online (Chatt.) 89.
Appellant submits that the marriage has irretrievably broken
down and there is no chance of reconciliation. If such a marriage is
not dissolved, it would amount to perpetrating mental cruelty upon
the appellant at the behest of the respondent. The respondent
should not be allowed to get advantage of her own wrong.
Therefore, it is submitted that the appeal be allowed by a decree of
dissolution of marriage.
13. Learned counsel for the respondent Mr. Rohitashya Roy has
taken the court through the relevant pleadings on record. The
factum of marriage, the separation of the parties since June, 1998,
the birth of the daughter out of their wedlock in November, 1998
and the institution of the criminal complaint by the respondent
against the appellant and his family members at Purulia under
Section 498-A and allied sections of the IPC and the Dowry
Prohibition Act have not been disputed. Learned counsel for the
respondent submits that the respondent had categorically denied
the allegations of cruelty attributed to her in her defence. She had
also stated that the divorce suit was instituted as her family was
unable to satisfy the demands of dowry. She was subjected to
torture by the family members of the plaintiff and they demanded a
car from her father. On account of such torture, she fell ill. She was
asked by the plaintiff to ask her father for money for her treatment.
Accordingly, her father came to Bokaro and gave Rs. 10,000/- for
her treatment. As desired by the parents of the plaintiff, she was
taken to Manbazar, Purulia and admitted in Bakura Medical
College & Hospital for delivery. However, plaintiff and his family
members did not care to seek any information regarding the birth
of the child. According to the respondent, at the time of marriage,
the demand of the plaintiff's family of Rs. 2,10,000/- was fulfilled
through cash and demand draft and a fix deposit of Rs. 1,50,000/-
was also made in the name of the defendant. Other valuables were
also demanded and given at the time of marriage. The cash
certificate had been encashed by the plaintiff. On 28.11.1999,
plaintiff came to Manbazar and demanded Rs. 3,00,000/-. He
threatened that on failure to meet the demand, the defendant and
the child will not be taken back to the matrimonial home.
Respondent was always ready and willing to reside with the
plaintiff and continue with the matrimonial tie. Therefore, she
prayed for dismissal of the suit.
14. Learned counsel for the respondent submitted that learned
trial court disbelieved the case of the plaintiff on both charges of
cruelty and desertion after due appreciation of the case of the
parties and the evidences on record. Learned counsel for the
respondent further submitted that the judgment of acquittal passed
by the learned Judicial Magistrate, 3rd court, Purulia was on
account of the reason that the prosecution had failed to prove the
case beyond shadow of all reasonable doubts and not a clean
acquittal. The judgment has been brought on record through a
supplementary affidavit without seeking amendment of the plaint
or by filing any application under Order 41 Rule 27 of the CPC.
Learned counsel for the respondent has also sought to distinguish
the decisions rendered in the case of K. Srinivas Rao vs. D.A.
Deepa reported in (2013) 5 SCC 226 and in the case of K. Srinivas
vs. K. Sunita reported in (2014) 16 SCC 34 on the plea of mental
cruelty due to acquittal in a criminal case. He submits that in the
case of K. Srinivas Rao (supra) the Hon'ble Supreme Court had
taken note of the multiple complaints lodged by the wife and her
nasty allegations against the father-in-law and mother-in-law. In
the case of K. Sunita (supra), a false complaint case was lodged
after institution of the divorce case. Therefore, the Hon'ble
Supreme Court in both instances observed that institution of such
false complaints amounted to mental cruelty. Learned counsel has
also placed reliance upon the decision of Hon'ble Calcutta High
Court in the case of Palash Chandra Karan vs. Sujata Karan
reported in 2011 SCC Online (Cal.) 976 para 11,12 13 to 15
relating to a matrimonial dispute. He submits that the Calcutta
High Court has held that the judgment in criminal case can't be
relied upon in a civil proceeding to substantiate the charge of
cruelty. The allegations of cruelty have to be substantiated by the
weight of pleadings and evidence adduced during the civil
proceedings i.e. the matrimonial suit. Section 40 of the Evidence
Act has also been relied upon. In support, reliance has been placed
in the case of Om Prakash Gupta vs. Ranbir B. Goyal reported in
(2002) 2 SCC 256 paragraphs 11 and 12. He submits that in the
case of Ravi Kumar vs. Julmi Devi reported in (2010) 4 SCC 476,
the Apex Court has held that in order to substantiate the grounds of
cruelty material particulars with specific details are required to be
pleaded and proved and in absence thereof decree cannot be
granted. He submits that the plaintiff-appellant has neither pleaded
any specific instance of torture and cruelty on the part of the
respondent's wife nor been able to substantiate such allegations
during trial.
15. Learned counsel for the respondent has also placed reliance
upon the decisions rendered by the Apex Court in the case of
Ravindeer Kaur vs. Manjeet Singh (Dead) through Legal
Representatives reported in (2019) 8 SCC 308 and Mangayakarasi
versus M. Yuvaraj reported in (2020) 3 SCC 786. It is submitted
that the Apex Court held that every acquittal in every criminal case
filed by either of the parties in a matrimonial suit cannot
automatically be treated as a ground for divorce, as it would be
against the statutory provisions. Mere initiation of a legal
proceeding on the part of the wife to protect herself and possession
of her property as shield from assault cannot be treated as mental
cruelty. It is submitted that the judgment of acquittal passed in the
case of the appellant and his family members, therefore, could not
be held to substantiate the charge of mental cruelty against the
appellant in order to seek a decree of divorce.
The decision in the case of Ajay Narayan Das vs. Aasha
Devi reported in 2018 SCC Online (Jhar.) 1776, according to him,
was rendered in the circumstances when the case of murder lodged
by the wife and her father against the husband were found to be
false by the police during investigation. Since a final form was
submitted, the Hon'ble Court held that lodging a false criminal
case of murder by the respondent's wife amounted to mental
cruelty. In the case of Chandana Singh vs. Sangita Singh relied
upon by the appellant, the Hon'ble Chattisgarh High Court found
that the respondent's wife had made vulgar and nasty allegations in
her deposition against her father-in-law and she also refused to
cohabit with her husband. In view of such conduct, the decree of
divorce was granted. It is submitted that the judgments relied upon
by the appellant are not applicable to the facts and circumstances
of the case. Merely because, the respondent in her criminal case
could not prove the allegations beyond shadow of reasonable doubt
could not mean that the allegations were false. Lastly, learned
counsel for the respondent has submitted that the future of the
daughter of the appellant and her marital prospects is an important
factor to be kept in mind while adjudicating this appeal. She is
pursuing a Master's Degree in Engineering. In this regard, he has
referred to para-15 of the judgment in the case of M. Yuvraj
(supra).
16. We have considered the submissions of learned counsel for
the parties. We have also taken into account the relevant pleadings
and the evidence on record relied upon by the parties from the
Lower Court Records. We have also perused the impugned
judgment and gone through the decisions cited at the Bar. It is
common case of the parties that the marriage took place on
09.05.1997 and since June, 1998, the parties have been living
separately. A daughter was born out of the wedlock on 05.11.1998
at Bakura Medical College, Bakura while the respondent was
staying at her matrimonial home. Respondent lodged a criminal
complaint on 03.12.1999 against the appellant and his family
members i.e. his father, mother and sister under Section 498-A/
406/34 of the IPC read with Section 4 and 5 of the Dowry
Prohibition Act. The suit for divorce was instituted by the appellant
in 2003 before Family Court, Bokaro. Learned Family Court
framed the issue of cruelty and desertion in marriage besides the
formal issues. On both counts, it was held that the
petitioner/appellant failed to substantiate the charge by any cogent
piece of evidence. The suit was dismissed on 30.03.2007.
17. During pendency of this appeal, the learned Judicial
Magistrate, 3rd court, Purulia vide judgment dated 20.05.2011
acquitted the appellant and his family members from charges under
Section 498-A/34 of the IPC on the ground that the prosecution
had failed to prove its case beyond shadow of reasonable doubt.
That judgment of acquittal has been brought on record by way of a
supplementary affidavit. The appellant during trial in the
Matrimonial Suit, in his deposition had made categorical reference
to the institution of the criminal case against him and his family
members stating that they were completely false. It was stated that
the institution of the false criminal case after 18 months of her
departure from the matrimonial home against him, his aged parents
and his married sister with an infant baby in arms caused serious
hazards and mental agony of going behind the bars to them. They
had to run from District Court of Purulia to Hon'ble High Court,
Calcutta and even to the Hon'ble Supreme Court of India for
obtaining anticipatory bail. Appellant also stated that the
allegations were craftily drafted to deliberate misuse the process of
law. The criminal case lodged before institution of the divorce suit
in 2003 has ultimately ended up in an acquittal of the appellant and
his family members. The judgment of acquittal passed during
pendency of this appeal can certainly be taken into account as a
subsequent development in relation to a prosecution which was
lodged before the institution of the divorce case and in regard to
which the appellant had also made categorical statements in his
deposition. The Apex Court in the case of K. Sunita (supra) has
taken into account the judgment of acquittal, a subsequent
development after the conclusion of the matrimonial suit, as a
factor to be taken into account on the plea of cruelty. In this regard,
reliance is also placed on the decision of reported in (2014) 16
SCC 34 (K. Srinivas vs. K. Sunita). As such, this Court is of the
opinion that the judgment of the learned Judicial Magistrate, 3rd
court, Purulia in the criminal case instituted between the parties
leading to acquittal of the appellant can certainly be taken into
consideration while deciding this appeal.
18. On a perusal of the judgment of acquittal by the learned trial
court of Judicial Magistrate, 3rd Purulia, it is found that while
discussing the allegations of torture, cruelty and harassment during
marriage in relation to the written complaint marked as Exhibit-1 it
has observed that the written complaint containing seven typed
pages was prepared first, thereafter the same was read over to the
complainant and thereafter she signed the same. Nowhere it was
stated or claimed by the complainant that the complaint petition
was prepared as per her instruction or dictation. As per learned
Trial Court undoubtedly this complaint was drafted by a fertile
brain and the complainant had only put her endorsement. The fact
of trying to kill by setting fire on the complainant's saree by her
husband on 28.11.1999 had not been stated by the complainant
during course of her examination. She also did not state about
assault made on her by her husband and the fact of not providing
proper food to her. None of the other witnesses had even whispered
to that effect. The learned trial court observed that omission of this
magnitude is vital and amounts to contradiction from the FIR (Ext.
A). During trial, 8 prosecution witnesses were examined including
the Investigating Officer as P.W.-8. Learned trial court while
rendering a finding with regard to the charge under Section 406 of
the IPC held that there was not even an iota of evidence of
entrustment of the gift articles to the accused. The gifted articles as
per the complainant could not be termed as dowry. It may be
termed as stridhan. None of the witnesses stated that mother-in-
law of complainant had snatched all gifted articles while she
returned with her father. Therefore, allegations under Section 406
IPC were not proved. The learned trial court after consideration of
the evidence of the prosecution further opined that the prosecution
had failed to make out the essential ingredients of Section 498-A of
the IPC. The manner of torture or harassment was not stated by any
witnesses and there was a lot of exaggeration, embellishment and
embroidery in the case. At one point, learned trial court upon
perusal of the evidence of the prosecution also observed that it was
a failed marriage coloured with criminal liability. There was no
evidence that the complainant suffered any health hazard due to
torture by the husband. The role played by each accused was not
specifically stated by the witnesses. Keeping all these facts in
mind, the learned trial court held that prosecution had failed to
prove the case under Section 498-A IPC against the accused
beyond shadow of all reasonable doubts. The accused persons i.e.
the appellant- Gautam Mahanty, his parents (Gopal Prasad
Mahanty and Urmila Mahanti) and his sister (Rupali Sannigrahi)
were not found guilty of the accusation under Section 498-A/34 of
the IPC. They were acquitted of the charges. On the part of the
respondent, the order dated 12.03.2013 passed in Domestic
Violence Case No. 90 of 2013 by the learned Judicial Magistrate,
1st Court, Purulia has been brought on record. A perusal thereof
shows that though it was known to the respondent and that she has
been receiving enhanced maintenance of Rs. 10,000/- for her and
Rs. 5,000/- for her daughter pursuant to the interim order dated 2nd
February, 2016 passed in the instant appeal, the said fact was not
brought to the notice of the learned Judicial Magistrate, Purulia
while deciding the domestic violence case. As a result, the learned
court directed the O.P./appellant herein to pay Rs. 7,000/- per
month as maintenance and Rs. 3,000/- per month for his child i.e.
in total Rs. 10,000/- by tenth day of every English month vide
judgment dated 12.03.2020 (Annexure-S/1) brought on record by
the respondent through supplementary affidavit dated 16.12.2020.
It further appears that the disposal of the maintenance case under
Section 125 of the Cr.P.C. vide order dated 21.01.2015 was also
not brought to the notice of the learned Judicial Magistrate, 1st
Class, Purulia. The learned court has observed on the basis of
submission made on behalf of the petitioner/respondent herein that
the petition under Section 125 Cr.P.C. is also pending before the
court and the petitioner and her daughter are unable to support
herself with a paltry sum of Rs. 3,500/- per month.
19. That institution of criminal case on false allegations amounts
to mental cruelty now stands well-settled by virtue of the decisions
rendered by the Apex Court in the case of K. Srinivas Rao (supra).
The Apex Court at paragraphs 28, 29 and 38 held as under:-
"28. Pursuant to this complaint, the police registered a case under
Section 498-A IPC. The appellant husband and his parents had to
apply for anticipatory bail, which was granted to them. Later, the
respondent wife withdrew the complaint. Pursuant to the
withdrawal, the police filed a closure report. Thereafter, the
respondent wife filed a protest petition. The trial court took
cognizance of the case against the appellant husband and his
parents (CC No. 62 of 2002). What is pertinent to note is that the
respondent wife filed criminal appeal in the High Court challenging
the acquittal of the appellant husband and his parents of the
offences under the Dowry Prohibition Act and also the acquittal of
his parents of the offence punishable under Section 498-A IPC. She
filed criminal revision seeking enhancement of the punishment
awarded to the appellant husband for the offence under Section
498-A IPC in the High Court which is still pending. When the
criminal appeal filed by the appellant husband challenging his
conviction for the offence under Section 498-A IPC was allowed
and he was acquitted, the respondent wife filed criminal appeal in
the High Court challenging the said acquittal. During this period
the respondent wife and members of her family have also filed
complaints in the High Court complaining about the appellant
husband so that he would be removed from the job. The conduct of
the respondent wife in filing a complaint making unfounded,
indecent and defamatory allegation against her mother-in-law, in
filing revision seeking enhancement of the sentence awarded to the
appellant husband, in filing appeal questioning the acquittal of the
appellant husband and acquittal of his parents indicates that she
made all attempts to ensure that he and his parents are put in jail
and he is removed from his job. We have no manner of doubt that
this conduct has caused mental cruelty to the appellant husband.
29. In our opinion, the High Court wrongly held that because the
appellant husband and the respondent wife did not stay together
there is no question of the parties causing cruelty to each other.
Staying together under the same roof is not a precondition for
mental cruelty. Spouse can cause mental cruelty by his or her
conduct even while he or she is not staying under the same roof. In
a given case, while staying away, a spouse can cause mental cruelty
to the other spouse by sending vulgar and defamatory letters or
notices or filing complaints containing indecent allegations or by
initiating number of judicial proceedings making the other spouse's
life miserable. This is what has happened in this case.
38. Before parting, we wish to touch upon an issue which needs to
be discussed in the interest of victims of the matrimonial disputes.
Though in this case, we have recorded a finding that by her
conduct, the respondent wife has caused mental cruelty to the
appellant husband, we may not be understood, however, to have
said that the fault lies only with the respondent wife. In matrimonial
disputes there is hardly any case where one spouse is entirely at
fault. But, then, before the dispute assumes alarming proportions,
someone must make efforts to make parties see reason. In this case,
if at the earliest stage, before the respondent wife filed the
complaint making indecent allegations against her mother-in-law,
she were to be counselled by an independent and sensible elder or if
the parties were sent to a mediation centre or if they had access to a
pre-litigation clinic, perhaps the bitterness would not have
escalated. Things would not have come to such a pass if, at the
earliest, somebody had mediated between the two. It is possible that
the respondent wife was desperate to save the marriage. Perhaps, in
desperation, she lost balance and went on filing complaints. It is
possible that she was misguided. Perhaps, the appellant husband
should have forgiven her indiscretion in filing complaints in the
larger interest of matrimony. But, the way the respondent wife
approached the problem was wrong. It portrays a vindictive mind.
She caused extreme mental cruelty to the appellant husband. Now
the marriage is beyond repair."
20. It has further been held in the case of K. Sunita (supra) at
paragraphs 1,2, 5 and 6 as under:-
"1. In this appeal, the counsel for the appellant has sought to draw
our attention to all the arguments that had been addressed before
the High Court on behalf of the appellant husband in support of his
claim for dissolution of his marriage to the respondent by a decree
of divorce under Section 13(1)(i-a) of the Hindu Marriage Act,
1955. We have, however, restricted him to the ground of alleged
cruelty on account of the filing of a criminal complaint by the
respondent against the appellant and several members of his family
under Sections 498-A and 307 of the Penal Code, 1860 (IPC). We
did this for the reason that if this ground is successfully
substantiated by the petitioner, we need not delve any further i.e.
whether a marriage can be dissolved by the trial court or the High
Court on the premise that the marriage has irretrievably broken
down. This nature of cruelty, in the wake of filing of a false criminal
case by either of the spouses has been agitated frequently before
this Court, and has been discussed so comprehensively and
thoroughly that yet another judgment on this well-settled question of
law, would be merely a waste of time. A complete discourse and
analysis on this issue is available in a well-reasoned judgment in K.
Srinivas Rao v. D.A. Deepa in which numerous decisions have been
cited and discussed. It is now beyond cavil that if a false criminal
complaint is preferred by either spouse it would invariably and
indubitably constitute matrimonial cruelty, such as would entitle the
other spouse to claim a divorce.
2. The marriage of the parties was celebrated according to Hindu
rites at Hyderabad on 11-2-1989. A male child was born to the
parties on 8-5-1991, after which the respondent wife, as per her
pleadings, started suffering from Sheehan's syndrome. On the night
of 29-6-1995/30-6-1995, the respondent left the matrimonial house
and ever since then she has been living with her brother, who is a
senior IAS officer. On 14-7-1995, the appellant filed an original
petition praying for divorce on the ground of cruelty as well as of
the irretrievable breakdown of their marriage. The respondent wife
retorted by filing a criminal complaint against the appellant as well
as seven members of his family for offences under Section 307 read
with Sections 34, 148-A, 384, 324 IPC, and Sections 4 and 6 of the
Dowry Prohibition Act, 1961. It is pursuant to this complaint that
the appellant husband and seven of his family members were
arrested and incarcerated. The respondent wife also filed a petition
under Section 9 of the Hindu Marriage Act, 1955 for restitution of
conjugal rights. On 30-6-2000, the learned Vth Additional
Metropolitan Sessions Judge, Mahila Court, Hyderabad, acquitted
the appellant and his family members, and this order has attained
finality. Meanwhile, by its judgment dated 30-12-1999, the Family
Court at Hyderabad, granted a divorce to the appellant on the
ground of cruelty as also irretrievable breakdown of marriage; it
rejected the respondent's petition under Section 9 of the Hindu
Marriage Act. The respondent wife successfully appealed against
the said judgment in the High Court, and it is this order dated 7-11-
2005 that is impugned before us.
5. The respondent wife has admitted in her cross-examination that
she did not mention all the incidents on which her complaint is
predicated in her statement under Section 161 CrPC. It is not her
case that she had actually narrated all these facts to the
investigating officer, but that he had neglected to mention them.
This, it seems to us, is clearly indicative of the fact that the criminal
complaint was a contrived afterthought. We affirm the view of the
High Court that the criminal complaint was "ill advised". Adding
thereto is the factor that the High Court had been informed of the
acquittal of the appellant husband and members of his family. In
these circumstances, the High Court ought to have concluded that
the respondent wife knowingly and intentionally filed a false
complaint, calculated to embarrass and incarcerate the appellant
and seven members of his family and that such conduct
unquestionably constitutes cruelty as postulated in Section 13(1)(i-
a) of the Hindu Marriage Act.
6. Another argument which has been articulated on behalf of the
learned counsel for the respondent is that the filing of the criminal
complaint has not been pleaded in the petition itself. As we see it,
the criminal complaint was filed by the wife after filing of the
husband's divorce petition, and being subsequent events could have
been looked into by the court. In any event, both the parties were
fully aware of this facet of cruelty which was allegedly suffered by
the husband. When evidence was led, as also when arguments were
addressed, objection had not been raised on behalf of the
respondent wife that this aspect of cruelty was beyond the
pleadings. We are, therefore, not impressed by this argument raised
on her behalf."
21. On the part of the respondent reliance has been placed on the
decision of the Apex Court in the case of Ravinder Kaur (supra)
on the proposition that initiation of legal proceedings by the wife
to protect herself and her property as a shield from assault cannot
be treated as mental cruelty. Such instances would not be
convincing enough to lead conclusion that marriage is irretrievably
broken down. In the facts of the present case, the criminal
proceeding lodged by the respondent in the year 1999 continued up
to the year 2011 ending up in the acquittal of the appellant and his
family members since the prosecution had not been able to prove
the charges beyond shadow of all reasonable doubts despite
adducing eight prosecution witnesses including the complainant
and other family members. Falsity of allegation upon acquittal of
the accused persons is one thing, at the same time, the continuance
of a criminal proceeding on such charges which the respondent
failed to substantiate after a full drawn trial over a period of 12
years in itself would amount to prolong agony and a feeling of
humiliation for the appellant and his family members facing trial.
On account of such allegations, the accused persons had to run
from one Court up to the Higher courts to seek protection from
unnecessary arrest. In the case of M. Yuvraj (supra) relied upon by
the learned counsel for the respondent at para-14 of the report, it
has been held as under:-
"14. It cannot be in doubt that in an appropriate case the
unsubstantiated allegation of dowry demand or such other
allegation has been made and the husband and his family members
are exposed to criminal litigation and ultimately if it is found that
such allegation is unwarranted and without basis and if that act of
the wife itself forms the basis for the husband to allege that mental
cruelty has been inflicted on him, certainly, in such circumstance, if
a petition for dissolution of marriage is filed on that ground and
evidence is tendered before the original court to allege mental
cruelty it could well be appreciated for the purpose of dissolving the
marriage on that ground. However, in the present facts as already
indicated, the situation is not so. Though a criminal complaint had
been lodged by the wife and husband has been acquitted in the said
proceedings the basis on which the husband had approached the
trial court is not of alleging mental cruelty in that regard but with
regard to her intemperate behaviour regarding which both the
courts below on appreciation of the evidence had arrived at the
conclusion that the same was not proved. In that background, if the
judgment of the High Court is taken into consideration, we are of
the opinion that the High Court was not justified in its conclusion."
22. The Apex Court has observed that in an appropriate case the
unsubstantiated allegation of dowry demand or such other
allegation made against the husband and his family members who
were exposed to criminal litigation which ultimately was found to
be unwarranted and without basis would amount to mental cruelty
upon the husband if such act of the wife found the basis for her
husband to allege cruelty in marriage for the purposes of seeking
dissolution of marriage. In the present case, the plaintiff/appellant
not only did allege cruelty, but also made reference to the false
allegation made by the respondent of demand of dowry and
allegations of torture on non-fulfilment thereof against him and his
family members. He also stated that the appellant and his parents
and his sister had to run from Purulia court to Calcutta High Court
to Hon'ble Supreme Court to seek protection from unwarranted
arrest. The allegations of demand of dowry and torture remained
unsubstantiated after a full drawn trial. Therefore, such an act on
the part of the respondent could definitely be termed as inflicting
mental cruelty upon the appellant. In the case of Samar Ghosh v.
Jaya Ghosh, reported in (2007) 4 SCC 511, the Apex Court has
cited illustrations which could amount to mental cruelty at para
101 as under:
"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 sterilisation
without medical reasons and without the consent or knowledge of his
wife and similarly, if 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."
Though, the Apex Court has stated that these instances are only
illustrative and not exhaustive, but 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 the 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. In
the said case, the parties were living separately for more than
sixteen and a half years and in those circumstances, the Apex Court
came to the irresistible conclusion that the matrimonial bond had
been ruptured beyond repair because of the mental cruelty caused
by the respondent. As per the opinion rendered by the Apex Court
in the case of K. Srinivas Rao, it is not necessary that mental
cruelty can only be inflicted if the spouses live together. Even
living in separation, but institution of false complaint cases would
amount to mental cruelty upon the other spouse. Staying together
under the same roof is not a pre-condition for mental cruelty. This
has what has happened in this case also. As such, we are of the
considered opinion that the charge of cruelty under Section
13 1 (i-a) of the Hindu Marriage Act stands substantiated against
the respondent.
23. The suit was also instituted on the charge of desertion. In
order to prove the offence of desertion, two essential conditions
must be satisfied, namely:-
(i) The factum of separation; and
(ii) The intention to bring cohabitation permanently to an
end (animus deserendi)
In this regard reliance is placed on the decision rendered by the
Hon'ble Apex Court in the case of Savitri Pandey vs. Prem Chand
Pandey reported in (2002) 2 SCC 73. Paragraphs 8 and 9 thereof
relating to the ingredients of desertion are being profitably quoted
herender:-
"8. "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. It further held: (AIR pp.
183-84, para 10)
"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. Here a difference between the English law and
the law as enacted by the Bombay Legislature may be pointed out.
Whereas under the English law those essential conditions must continue
throughout the course of the three years immediately preceding the
institution of the suit for divorce, under the Act, the period is four years
without specifying that it should immediately precede the
commencement of proceedings for divorce. Whether the omission of the
last clause has any practical result need not detain us, as it does not call
for decision in the present case. Desertion is a matter of inference to be
drawn from the facts and circumstances of each case. 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. If, in fact, there has been a separation, the essential
question always is whether that act could be attributable to an animus
deserendi. The offence of desertion commences when the fact of
separation and the animus deserendi coexist. But it is not necessary that
they should commence at the same time. The de facto separation may
have commenced without the necessary animus or it may be that the
separation and the animus deserendi coincide in point of time; for
example, when the separating spouse abandons the marital home with
the intention, express or implied, of bringing cohabitation permanently
to a close. The law in England has prescribed a three years' period and
the Bombay Act prescribed a period of four years as a continuous
period during which the two elements must subsist. Hence, if a deserting
spouse takes advantage of the locus poenitentiae thus provided by law
and decide to come back to the deserted spouse by a bona fide offer of
resuming the matrimonial home with all the implications of marital life,
before the statutory period is out or even after the lapse of that period,
unless proceedings for divorce have been commenced, desertion comes
to an end and if the deserted spouse unreasonably refuses the offer, the
latter may be in desertion and not the former. Hence it is necessary that
during all the period that there has been a desertion, the deserted
spouse must affirm the marriage and be ready and willing to resume
married life on such conditions as may be reasonable. It is also well
settled that in proceedings for divorce the plaintiff must prove the
offence of desertion, like and other matrimonial offence, beyond all
reasonable doubt. Hence, though corroboration is not required as an
absolute rule of law the courts insist upon corroborative evidence,
unless its absence is accounted for to the satisfaction of the court."
9. Following the decision in Bipinchandra case this Court again
reiterated the legal position in Lachman Utamchand Kirpalani v. Meena
by holding that in its essence desertion 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."
24. The Apex Court held that the offence of desertion
commences when the fact of separation and the animus deserendi
coexist. But it is not necessary that they should commence at the
same time. The de facto separation may have commenced without
the necessary animus or it may be that the separation and the
animus deserendi coincide in point of time; for example when the
separating spouse abandons the marital home with the intention
expressed or implied of bringing cohabitation permanently to a
close. In the present case, it is to be seen whether on the part of the
deserted spouse i.e. the appellant, there was absence of consent and
absence of conduct giving reasonable cause to the spouse leaving
the matrimonial home to form the necessary intention. For the
deserting spouse, two conditions are to be satisfied i.e., the factum
of separation and the intention to bring cohabitation permanently
to an end (animus deserendi). The allegations of demand of dowry
and resultant torture due to non-fulfilment thereof assumingly had
been a reason for the respondent to leave the matrimonial home in
June 1998 but the acquittal of the appellant and his family
members in the year 2011 in the criminal case instituted in the year
1999 establish that the appellant had not given reasonable cause
to her to leave the matrimonial home as such charge could not be
substantiated by her despite a full drawn trial. Respondent has not
come back to the matrimonial home since her departure in June,
1998 and after the judgment of acquittal passed in 2011. In those
circumstances, it can be safely concluded that though only the
factum of physical separation may have existed while she moved
out of the matrimonial home in June, 1998, but non-resumption of
conjugal life thereafter for all these years leads to an inference of
animus deserendi on the part of the respondent i.e. the intention to
bring cohabitation permanently to an end. The charges of desertion
also therefore stand established against the respondent. The
proceedings of the matrimonial suit, the criminal trial and the
instant appeal over a period of 14 years has created an
unbridgeable rift due to prolonged acrimonious relationship
between the parties which creates an impression that the marriage
has irretrievably broken down. Though, irretrievable break down
of marriage is not a recognized ground for divorce under Hindu
Marriage Act, 1955, but taken together with other established
grounds, it is an additional factor to be taken into account while
deciding a plea of divorce.
True it is, that the only daughter born out of the wedlock on
05.11.1998 is now about 21 years old and pursuing M-tech course,
her future and marital prospects are to be kept in mind, but the
continued long separation between the spouses for about 22 years
and more by now with only about 13 months of conjugal life do
persuade us to come to a conclusion that there are no emotional
bonds left between the spouses to revive. The marriage remains
only a legal tie. When the matrimonial bond is beyond repair, by
refusing to sever that tie, the law in such cases does not serve the
sanctity of the marriage. On the contrary, it shows scant regard for
the feelings and emotions of the parties. Such situations may
themselves lead to mental cruelty, as observed by the Apex Court
in the case of Samar Ghosh (supra), where the separation was
more than sixteen and a half years. In the present case, the
separation is more than 22 years by now. Therefore, on a
considered view of the matter, since both the charges of cruelty and
desertion stand established against the respondent and that the
parties have been living separately for more than 22 years, we are
of the view that the marriage deserves to be dissolved.
Accordingly, the marriage between the parties stands dissolved.
25. The appellant is working as a Chief Engineer (Electrical &
Mechanical) in the Bharat Coking Coal Ltd. Area No. 3, Dhanbad,
Dhanbad. On query made to him, he has stated that he has a gross
salary of Rs. 1,80,000/- and take home salary of Rs. 80,000/-.
Appellant has stated that he has five years of service left. Appellant
has also stated that he has made investment to the tune of Rs.
3,00,000/- for the purposes of being used during marriage of his
daughter. The respondent and the daughter has been getting
maintenance at the enhanced rate of Rs. 10,000/- and Rs. 5,000/-
per month respectively by virtue of the order dated 02.02.2016.
The respondent apparently has no independent source of income
and the daughter is also studying in M-tech and is dependent. As a
matter of fact, by virtue of the order passed by this Court earlier on
17.09.2020, appellant contributed half of her admission fee of Rs.
1,41,000/- i.e. Rs. 70,500/- for her admission in first year/1st
semester of M-Tech course in the Wireless Technology in the
discipline of Telecommunication and Electronics in BIT Mesra.
26. Taking all these factors into account, we are of the
considered view that the appellant should pay a permanent alimony
of Rs. 25,00,000/- (Rupees Twenty five Lakh only). Out of the
permanent alimony of Rs. 25,00,000/-, Rs. 15,00,000/- is to be
paid for the respondent- wife and Rs. 10,00,000/- in the name of
the daughter. Out of the amount of Rs. 10,00,000/- awarded in
favour of the daughter, Rs. 4,00,000/- should be used for her future
education and remaining Rs. 6,00,000/- shall be kept for her
marriage purposes. The investment made in the name of the
daughter by the appellant should also be disbursed at the time of
her marriage. The appellant shall pay the amount of permanent
alimony within a period of four months from the date of decree.
On payment of the permanent alimony, the interim maintenance
being paid by the appellant to the respondent and the daughter
shall come to an end. The impugned judgment dated 30.03.2007
passed in Title (Mat) Suit No. 13 of 2003 and decree dated
09.04.2007 by the learned Principal Judge, Family Court, Bokaro,
is set aside. Appeal stands allowed. Let a decree be drawn
accordingly.
27. Let the lower court records be returned to the court
concerned.
28. Pending interlocutory applications are closed.
(Aparesh Kumar Singh, J.)
(Anubha Rawat Choudhary, J.)
Binit/Mukul
