S.K. Singh and Pankaj Mithal, JJ.
1. Heard Sri B.D. Mandhyan, learned senior advocate assisted by Sri Kumar, learned advocate in support of this appeal and Sri H. R. Mishra, learned senior advocate assisted by Sri B. K. Tripathi, learned advocate who appeared for the respondents.
These are two appeals clubbed together. Both appeals are by lady challenging the decree for divorce against her and dismissal of her petition for restitution of conjugal rights.
2. Appeal No. 403/2006 challenges the order passed by Principal Judge, Family Court, Gorakhpur dated 17.8.2006 by which Divorce Petition No. 343/2006 filed by the husband who is respondent here has been decreed and the Appeal No. 404 of 2006 challenges the dismissal of petition for restitution of conjugal rights filed by the wife.
3. For disposal of the appeal, necessary facts can be summarised. Marriage between the parties took place eight years before filing of the petition which was filed in the year 2001. Out of the wedlock, just after one year, a male child whose name is Mukul who was aged about six years at the time of filing petition was born. Very next year, a female child whose name is Gudiya who was aged about five years at the time of filing of petition was born. On the allegation that just after couple of the years, lady started ignoring and not taking care of the parents of the husband and started abusing them and started free visit to maika etc. and for certain other details, as stated in the petition, which according to the husband amounted to cruelty, Divorce petition was filed. A plea of desertion, i.e. leaving the place of the husband without any lawful excuse has also been taken. The lady in her written statement denied all the charges and as counter version it was said that she never wanted to leave the place of her husband and it is on the ailment of the son, on 24.9.2001, the husband finally left her at parents' place and thereafter in-laws never took her back. Various allegations as levelled against her were also denied. Besides the contest in divorce petition filed by the husband, lady filed petition for restitution of conjugal rights in the year 2003, which was numbered as Petition No. 247 of 2003. Both petitions were clubbed for being decided together. From the side of husband, the statement of Ajit (husband), Shanker Gopal and one Ram Gopal Shukla was given. The lady in support of her case, examined herself and one Sita Ram. Various documents, i.e., panchayat papers, filing of application before the police authorities, some settlement in the Mahila thana etc. are on record. Learned Family Judge after getting necessary issues framed, decided both petitions and as noted above, the divorce petition filed by the husband was decreed and the petition for restitution of conjugal rights filed by the lady was dismissed and thus to challenge both the orders of Principal Judge, Family Court granting decree for divorce and dismissing restitution of conjugal right petition, these appeals are before this Court.
4. Sri Mandhyan, learned senior advocate at the very start of the submission, submits that learned Principal Judge, Family Court proceeded in a very cursory manner in granting decree for divorce. Required finding in relation to the plea of cruelty and desertion which can be said to be based on positive evidence and referable to any specific instance/incidence which may lead to cruelty is not there and thus the judgment being based on cursory note of the evidence, decree for divorce as granted is not to be approved. It is submitted that heavy emphasis was given by learned Family Judge about series of cases lodged by the lady, (six in number) which caused mental harassment/cruelty to the husband and family members but on analysis of those cases, this Court can safely find that those cases are just off-shoot of the proceedings/litigation which was started by the husband himself and they can be said to be a natural flow from any ordinary litigant. Submission is that neither there is any positive evidence either oral or documentary nor there is any positive allegation which may be termed as cruelty, but the Court has inferred factum of cruelty just on vague and misconceived assertion and therefore, the judgment can be said to be based on surmises and assumption and thus, the marriage which under Hindu system, is said to be sacrosanct, has been directed to be dissolved by an arbitrary approach to the facts which needs interference by this Court. Submission is that lady, all times even today, is ready to live with the husband without imposing any condition and this statement is not as a compulsion but this is with the sweet will and all kindness on her part as she has two children (one male and one female) as noted above out of the wedlock. Sri Mandhyan, learned senior advocate submits that rigidness of the husband-respondent and the stand before this Court for not taking her back itself speaks about harshness and cruel approach of the husband. In respect to plea of desertion, Sri Mandhyan submits that neither there is any clear plea that for the required period, without any lawful reason, lady deserted the husband nor there is any evidence nor there is any clear finding.
5. Sri Mandhyan, referred to the order dated 8.9.2006 of this Court in which, it has been clearly recorded that the Court made effort for reconciliation between the parties, the wife is ready to go with the husband but the husband is not ready to take her back. On these facts, submission is that as no positive evidence is available before the Court in support of the theory of cruelty and desertion, the decree of divorce is to be set aside.
6. In support of the submission that on vague acquisition against the wife without examining family witnesses like father or other family members no decree for divorce is to be given, reliance has been placed on the decision given in the case of Smt. Beena v. Suresh Vir Tomar 1995 (25) ALR 277 : 1995 (1) AWC 1.
7. In support of the submission that mental cruelty has some serious meaning and each and every allegation made by the party seeking divorce cannot constitute mental cruelty, reliance has been placed on the decision given in the case of Pushpavathi alias Lalitha v. Manichasamy 2002 (4) AWC 3002 (SC).
8. In support of the submission that stress should always be on preserving the institution of marriage and thus the Court has to be cautious, reliance has been placed on the decision given by the Apex Court in the case of Balwinder Kaur v. Hardeep Singh 1998 (32) ALR 237 : 1998 (1) AWC 709 (SC).
9. In the last, a Division Bench judgment of our own Court given in the case of Smt. Tajendra Kaur v. Jogendra Singh 2000 (4) AWC 3137, was also pressed for the submission that if the wife is prepared to live with the husband and if husband is not ready to take her back and if there is no material evidence to support acquisition about the wife treating the husband with cruelty, decree for divorce granted by the family court, is to be set aside.
10. In response to the aforesaid, Sri Mishra, learned senior advocate submits that in support of plea of cruelty and desertion, enough evidence is on record and if court below after taking note of various litigation between the parties and the approach/attitude of the lady to the family members, recorded finding on both score then the decree is not to be interfered by this Court. Much emphasis was laid by Sri Mishra, on the factum of long span for which both sides are not living together and there being long drawn proceeding of 10-12 years, the Court is to assume that marriage has broken down for all purposes and as re-union is not possible, setting aside the decree for divorce will be harsh and that may not be justified. In support of the aforesaid submission, reliance was placed by Sri Mishra, on series of judgments. Some of them are referred in the judgment of the family Judge itself. The judgment given by Apex Court in the case of Naveen Kohli v. Neelu Kohli : (2006) 4 SCC 558 : 2006 (2) AWC 1057 (SC), was placed before the Court during course of argument.
11. Other decisions given by the Apex Court in the case of Rishikesh Sharma v. Saroj Sharma 2007 (1) AWC 760 (SC), in the case of Samar Ghosh v. Jaya Ghosh 2007 (5) AWC 4820 (SC) and Manjula v. K.R. Mahesh 2007 (1) AWC 97 (SC), were also shown.
12. In view of the aforesaid, this Court has to deal with the submission of either of the sides.
13. Before dealing with the case on the facts, it is to be observed that marriage in our Hindu society is said to be sacrosanct and is treated with sense of social security specially to the women. For this reason, Apex Court, gave emphasis that stress should always be on preserving the institution of marriage and litigation of these kinds is not to be treated like other commercial suit per Balwinder Kaur (supra). This is to be kept in mind while deciding the matrimonial dispute. Besides, testing the case on the facts of each case, Court has to take into account of the attending circumstances as the decree for dissolution of marriage is not only a property/monetary loss but it is a loss to the social status, reputation in society, mental torture and agony which is beyond repair. This is a loss which cannot be compensated in terms of money. This is a social issue leading to insecurity, specially to the woman.
14. So far as the case in hand is concerned, there is no dispute about the fact that the marriage between the parties was solemnized with all peace and happiness and both lived together for about 8 years and out of the wedlock, first male and then female child was born who are now quite grown up as when the petition was filed, their age was said to be 6-5 years respectively. The lady is still, in spite of such a long lapse of about 8 years of filing petition, is happily stating to live with the husband which is recorded in the order of this Court as noted above but there is all reluctance from the side of the husband which can also be found to be observed in the order of this Court.
15. The decree of divorce has been given on accepting plea of cruelty (mental) and with small support of desertion also. So far as mental cruelty is concerned, for the purposes of deciding matrimonial dispute, Court is to take the word 'cruelty' with all its seriousness for which the word 'cruelty' is known. Sometimes, indecent behaviour, disobedience of some kind of instructions, not taking care of the family affairs and indulgence in hot talks, annoyance with family members and various other kinds of things of like nature which may not be liked by the husband and family members, can be claimed as cruelty but, on the basis of these allegations unless something is found to be not tolerable, decree for divorce is not to be granted. There has to be strict proof in respect to the charge of cruelty which may be of any kind/nature. Mere vague assertion and that too not supported by any positive evidence, instance if is accepted to be cruelty then that itself will be a cruel approach. Statement of a person who is not an eye-witness of any act of cruelty, there being no statement of the family members as noted in the judgment of Smt. Beena (supra) may not be accepted to be sufficient proof of cruelty.
16. So far as present case is concerned, in support of the version of cruelty/desertion, the statement of husband Shanker Gopal and Ram Gopal Shukla has been referred by the learned family Judge. On perusal of entire judgment, this Court finds that the statement of witnesses have been just referred but no positive instance or any incident which may be said to be of such nature/gravity which amounts to cruelty, has been pointed out. A cursory note or the mention of the detail in the statement without assigning any reason to accept or not to accept the substance of that version/statement, may not be said to be a proper analysis in support of an allegation. In fact, the court below appears to have been influenced by an important fact that the husband and his family members have been fastened in six cases and thus this can be said to be enough torture and cruelty. List of six cases were given by learned Counsel for the respondents during course of argument and thus, this Court appreciate this effort as in the judgment of the court below, there is no clear mention of those cases in sequence. All the six cases of which there is reference in the judgment of the court below, are ; (1) Suit No. 247/03, Smt. Purnima Gupta v. Ajeet Kumar; (2) Case No. 626/04, Smt. Purnima v. State; (3) Suit No. 248/04, Smt. Purnima Gupta v. Ajeet Kumar; (4) Suit No. 89/06, Smt. Purnima Gupta v. Ajeet Kumar; (5) Crl. Case No. 2015/05, State v. Ajeet Kumar and (6) Application under Section 24 of Hindu Marriage Act. So far the first case as referred above is concerned, that is a case of restitution of conjugal rights which was filed by the lady much after filing of the divorce petition and both were clubbed. So far as Case No. 626/04 under Section 125, Cr. P.C. is concerned, that was filed by the lady in the year 2004 and obviously, she has to file petition for maintenance for which, she cannot be blamed. So far as Suit No. 248/04 is concerned, that is suit for restraining the husband from re-marriage. So far as Crl. Case No. 2015/05 is concerned, admittedly that came into existence in the year 2005. Lady on being harassed filed a complaint for which no exception can be taken, and Sri Mandhyan, submits that in the event decision goes in favour of lady, then she will be making statement by filing application not to proceed with those cases. So far as case under Section 24 of Hindu Marriage Act is concerned, that is for maintenance during pendency of litigation. Thus, so far all six cases are concerned, this Court finds, they can be said to be of no effect or of any gravity to support the charge of cruelty.
17. In the case of Smt. Beena v. Suresh Vir Tomer (supra), a Division Bench of this Court has observed as under:
There is no clear evidence if there was no sexual relationship during this period. Besides, there is no clear evidence as to how the wife was behaving. Details of such misbehaviours, refusal to take food or threat to commit suicide ought to have been given. On vague allegation and statement and on account of non-examination of competent witness like father of husband or other family members, vague accusation against wife cannot be accepted to grant divorce.
18. In the case of Pushpavathi alias Lalitha (supra), the Apex Court has held as under:
Admittedly, there is no plea either in the plaint or in memo of appeal before High Court that any allegations made by the wife in the written statement constitute mental cruelty. Whether given facts constitute mental cruelty or not, depends upon facts and circumstances of each case. What is mental cruelty as envisaged under Section 13(i)(a), this Court in S. Hanumantha Rao v. S. Ramani : 1999 (2) AWC 1502 (SC) : JT 1999 (2) SC 451, said:Mental cruelty broadly means, when either party causes mental pain, agony or suffering of such a magnitude that if severs the bond between the wife and the husband and as a result of which, it becomes impossible for the party who has suffered to live with the other party. In other words, the party who has committed wrong is not expected to live with the other party.
19. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made: V. Bhagat v. D. Bhagat (Mrs.) : JT 1993 (6) SC 428. In the present case, the husband has not even taken a ground in the memo of appeal that the averments made by the wife constituted mental cruelty. Each and every allegation made against husband by the wife in the written statement defending a petition for divorce filed against her cannot constitute mental cruelty.'
20. The Apex Court in the case of Balwinder Kaur (supra) has observed as under:
A petition for divorce is not like any other commercial suit. A divorce not only affects the parties, their children, if any, and their families but the society also feels its reverberations. Stress should always be on preserving the institution of marriage. That is the requirement of law. One may refer to the Objects and Reasons which led to setting up of family courts under the Family Courts Act, 1984. For the purpose of settlement of family disputes emphasis is 'laid on conciliation and achieving socially desirable results' and eliminating adherence to rigid rules of procedure and evidence.
21. A Division Bench of our High Court in the case of Smt. Tejendra Kaur (supra) has held as follows:
In Smt. Deepika alias Baby v. Naresh Chandra Singhania : AIR 2000 All 148 : 2000 (2) AWC 891, the allegation of the husband was that the wife had treated him with cruelty but the Court did not rely upon his solitary testimony of his parents, brother, sister, friends and relatives and held that they were material witnesses to prove the allegations made by the husband in his pleadings. In Smt. Beena v. Suresh Vir Tomer 1995 (25) ALR 277, similar view was taken that accusation by the husband against wife should be proved by producing other members of the family. In the present case, the appellant in her statement before the family court denied the allegations made by the respondent. There was no other cogent evidence except the oral statement made by the parties before the family court.
22. Thus, on these facts, this Court is satisfied that the court below has assigned no positive reason by referring to any clinching evidence/material which may be either oral 'or documentary for accepting the plea of cruelty/desertion so as to maintain the decree of divorce.
23. So far as the submission that both parties are not living together since 10-12 years and therefore, marriage should be treated to have broken down, in support of which series of decision of the Apex Court were shown to this Court, suffice it to say that not living together for a quite long period, is not a ground given in Section 13 of Hindu Marriage Act on which decree for divorce can be granted. The decree for divorce is to be granted only on the ground so stated in Section 13 of Hindu Marriage Act. Otherwise also, if this is accepted to be a ground, then take a situation that just after 2-3 years of marriage, a divorce petition is filed and that is allowed to remain pending before the family court and then to the appellate court and then to the Apex Court for a period of 10-12 years, upon which this is to be treated as an automatic ground for divorce where matrimonial disputes are not able of being decided for quite long. To this situation of long delay, party against whom decree for divorce if otherwise is not to be granted, may not be justified on being granted as there may not be any fault of the party in not living together for long.
24. This aspect was earlier also dealt by the Apex Court in the case of Pushpavathi alias Lalitha. The observation in this respect can be quoted here:
The Court had cautioned in that case that unusual step of granting the divorce was being taken only to clear up the insoluble mess when the Court finds it in the interests of both the parties. The Court also opined that merely because there are allegations and counter allegations, a decree of divorce cannot follow nor can it follow merely on account of delay in disposal of divorce proceedings. The parties have not lived together as husband-wife for last number of years by itself cannot be a ground for annulling a marriage by granting decree of divorce in absence of the existence of one or other ground permissible under the Hindu Marriage Act, 1955.
25. This aspect has been again dealt by the Apex Court in a recent decision in the case of Vishnu Dutt Sharma, S.L.P. (C.) No. 13166 of 2007, Civil Appeal No. 1330 of 2009, decided on 27.2.2009. Apex Court ruled that even if the parties are not living together since long, that cannot be treated to be a ground for divorce and the argument of break down in the marriage is not to be accepted and on this ground, decree of divorce is not to be maintained.
26. The observation of the Apex Court in this report is to be quoted here:
On a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable break down of the marriage is provided by the Legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the Legislature.
27. Learned Counsel for the appellant has stated that this Court in some cases has dissolved a marriage on the ground of irretrievable break down. In our opinion, those cases have not taken into consideration the legal position which we have mentioned above, and hence they are not precedents. A mere direction of the Court without consideration of the legal position is not a precedent. If we grant divorce on the ground of irretrievable break down, then we shall by judicial verdict be adding a clause to Section 13 of the Act to effect that irretrievable break down of the marriage is also a ground for divorce. In our opinion, this can only be done by the Legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts. Hence, we do not find force in the submission of the learned Counsel for the appellant.
28. For the reasons given above, this Court is satisfied that learned Principal Judge, Family Court in granting the decree for divorce has committed an error and thus the judgment and decree granting divorce is hereby set aside and judgment of Principal Judge dismissing petition for restitution of conjugal right is also set aside.
29. Both appeals filed by the lady are hereby allowed. The suit filed by husband for divorce is hereby dismissed and petition filed by lady for restitution of conjugal right is hereby decreed.
30. Parties are to bear their own costs.