Rajesh H. Shukla, J.
1. The present Appeal has been preferred by the Appellant - Original Defendant - wife ('Appellant wife'), challenging the impugned judgment and order passed by the Family Court in Family Suit No. 329 of 2000 dated 18th March 2002, allowing the petition for divorce filed by the Respondent 'Original Petitioner - husband ('Respondent husband'), for dissolution of marriage on the ground of cruelty under Section 13(1)(ia) of The Hindu Marriage Act, 1955 ('the Act').
2. The facts of the case briefly stated are:
2.1 The marriage between the Respondent husband and the Appellant - wife was solemnized on 21.5.1995 as per Hindu Rites and Rituals. After marriage, they started living together as husband and wife, and a daughter was born out of the wedlock. Thereafter, the quarrel started, and the wife left the matrimonial house. Some efforts were made thereafter for reconciliation, but resulted in failure. Therefore, the Respondent - husband filed Family Suit No. 329 of 2000 seeking dissolution of marriage on the grounds set out in detail in Family Suit No. 329 of 2000 inter alia that the Appellant wife deserted the Respondent husband without any reason or the cause. It is also averred that the Respondent husband was having a job at Vadodara and he used to do up-down. However, the Appellant -wife, instead of adjusting, started quarrel and also insulted and misbehaved with the Respondent husband and his family members. It is also averred that the Appellant - wife had gone to her parental house many a times without informing the Respondent husband and after a lot of persuasion, the Appellant wife used to return to the matrimonial house, but the attitude never changed. It was also averred that he suffered such an attitude with a view to save the marriage and also for the welfare of the daughter. However, the Appellant wife used to threaten the Respondent husband and his family members that she will commit suicide and send them to the jail. It is also averred that the Respondent - husband was having a job in GSFC, at Vadodara, during which he used to do up-down and stayed at Ahmedabad with the parents and the Appellant - wife. Thereafter, the quarter was allotted and the Appellant - wife desired to stay with the Respondent - husband at Vadodara and not in the joint family with the parents.
2.2 The Appellant wife had also filed the written statement (exh.7) contending inter alia that the false allegations are made against her. It was also denied by the Appellant wife that she had ever insisted to live separately from her in-laws. It was also contended that, during her pregnancy period, because of her ill-health, she was advised to take rest by the doctor, even then she lived with her in-laws and fulfilled the obligations as a daughter-in-law. It is also contended that after the delivery, the Respondent husband never turned to see her and the new born baby. It is also contended that she was ready and willing to live with the Respondent husband, but the Respondent husband was not ready and willing to bring her back. It is also contended that the Respondent husband had not taken any care to maintain her and her daughter and they were neglected by the Respondent husband. It is also contended that even at the time of filing of the written statement, she was ready and willing to live with the Respondent husband.
2.3 Originally, the family suit was filed in the Court of learned Civil Judge (SD), Ahmedabad Rural, at Mirzapur. However, on establishment of the family court, the matter was transferred to the family court, and therefore, the learned Presiding Judge of the family court received the papers when the recording of evidence had started. However, the learned Presiding Judge of the family court had also tried to bring about an amicable settlement between the parties, but the efforts had failed, and therefore, the family court proceeded with the suit and framed the issues, and ultimately, on appreciation of the evidence led by both the sides and on hearing both the sides, passed the impugned judgment and award decreeing the suit for the dissolution of marriage, which is challenged in the present appeal by the Appellant wife, on various grounds set out in the memo of the appeal, inter alia that the impugned judgment and order is contrary to the principles of law enunciated in Section 13 of the Act. It is also contended that the learned Judge has erred in interpreting and applying the term 'cruelty' in its proper context and has failed to appreciate the evidence on record that the Appellant wife was ready and willing to stay with the husband, and therefore, the learned Judge has erroneously held that the Appellant wife had committed cruelty upon the husband. Therefore, the conclusion arrived at is contrary to material evidence on record. It is also contended that the learned Judge has committed serious errors in appreciating the evidence on record and has infact ignored and overlooked the evidence led by the Appellant wife. It is also contended that the allegations made were not justified or acceptable like that the Appellant wife had given a threat of committing suicide, which is hardly credible and palatable, and there was no basis to sustain such allegations. Further, it was contended that the incidents about misbehaviour and the wife having slapped the Respondent husband, are also false, and therefore, the learned Judge has committed a grave error in appreciating the evidence. It is also contended that the falsehood, which has been put forward by the Respondent husband speaks volumes about the malafides on part of the Respondent husband and infact is foul tactics to defame the Appellant wife to establish the charge of cruelty, were only a falsehood, concocted and not supported by any evidence. It is also contended that the learned Judge proceeded to record finding of cruelty against the Appellant wife by placing undue reliance on the allegations of the Respondent husband without any support or legal basis for the same. It is, therefore, contended that the approach of the court below, on the issue of cruelty has been misdirected and contrary to the recognized principles governing the concept of cruelty and the required proof for the same. It is also contended that the learned Judge has committed a serious error in holding that the Appellant wife has committed cruelty to the Respondent husband by not going to the house of the Respondent husband after delivery of the child. The findings are contrary to the evidence led by the Appellant wife and it reflects and reveals that the approach of the court below was erroneous. It is contended that infact, the Respondent husband has deliberately refrained from calling the Appellant wife and the daughter back to his house, and also, none of the family members had shown any positive inclination to call her back. It is also contended that the evidence of one Shri Natwarlal Dwarkadas, who was instrumental for the marriage and who happens to be brother-in-law of Vishnubhai Patel - the father-in-law, has also not been appreciated. It is, therefore, contended that decree of divorce could not have been lawfully passed by the court below on the ground that the Appellant wife has committed cruelty upon the Respondent husband by depriving him of the enjoyment of conjugal rights. It is also contended that the learned Judge has failed to appreciate that, it was impossible for the Appellant wife to go either at Vadodara or at Ahmedabad at her in-laws house against the will of the Respondent husband and other family members, when there was a reluctance created for which she was not at fault. Therefore, instead of appreciating the evidence and also the fact that the Appellant wife was ready and willing to go to the Respondent husband's house to save matrimonial life and is also ready and willing to go either at Vadodara or at the matrimonial house at Ahmedabad where the parents of the Respondent husband resided, and yet the decree came to be passed on the ground of cruelty erroneously and contrary to the evidence on record. Thus, it has been contended that the learned Judge has committed grave error and failed to appreciate the evidence while recording a finding on the point of cruelty in light of the settled principles of law with regard to the cruelty as a ground of divorce.
2.4 Lastly, it is also contended that the impugned judgment and order requires interference, as the impugned judgment and order awarding the permanent alimony to the tune of Rs. 3000/- per month to both the Appellant wife and the daughter is improper, inadequate and does not commensurate with the income of the Respondent husband.
3. Learned advocate Mr. N.V. Solanki, appearing for the Appellant wife submitted that the impugned judgment and order granting divorce on the ground of desertion is bad in law. Learned advocate submitted that few undisputed facts and the chain of events are required to be appreciated for the appreciation of evidence to focus how the learned Judge has committed an error.
4. It was submitted that the date of marriage is 21.5.1995. Thereafter, the Appellant wife was pregnant and there was a 'srimant' ceremony on 18.6.1996. Learned advocate for the appellant submitted that, thereafter the Appellant wife was sent to the parental house for delivery. However, she was always willing to return to the matrimonial house, but was not allowed. Learned advocate for appellant submitted that, as stated by the Appellant wife and supported by the evidence of the witnesses examined by the Appellant wife, the efforts were made suggesting that the Appellant wife was ready and willing to return to her matrimonial house. Learned advocate for appellant submitted that the Appellant wife has specifically stated that the Respondent husband had not visited her at the time of delivery or thereafter to take care either of the Appellant wife or the newly born baby. Learned advocate for appellant submitted that as the Appellant wife had gone to her parental house for the purpose of delivery on 18.6.1996, and thereafter she delivered a baby and was willing to return to her matrimonial house thereafter, but as the Respondent husband was not willing to accept the Appellant wife, and infact, the Respondent husband did not even visited her at the time of delivery or thereafter, and immediately thereafter the efforts for reconciliation made were also without any fruitful result, would be suggestive of the fact that the Respondent husband was not inclined to accept the Appellant wife. This is evident from the fact that the Respondent husband had filed petition for divorce under Section 13(1)(ib) on 24.3.1998 itself, meaning thereby, during this period, whatever efforts were made for reconciliation, the Respondent husband had made up his mind and because of the attitude adopted by the Respondent husband and his family members, reconciliation could not be made. Learned advocate for appellant submitted that it could be revealed from the deposition of the Appellant wife that she is ready and willing to go to live with the Respondent husband either at Vadodara or at Ahmedabad, where her in-laws were residing. Therefore, the Appellant wife had shown all the willingness to reconcile, to save the marriage in the interest of the child. Learned advocate for appellant submitted that the Appellant wife had also made efforts for reconciliation through Legal Services Authority and such other forums, and their efforts also could not bring any fruitful result.
5. Learned advocate for appellant referred to the provisions of Hindu Marriage Act and particularly Section 13(1)(ib) and submitted that it refers to the decree of divorce on the ground of desertion by either of the spouse. However, as could be seen from the appreciation of the evidence and the observations and discussions made by the court below, the learned Judge has not believed or accepted the ground of 'desertion'. However, the decree of divorce has been passed on the ground of 'irretrievable breaking down of marriage', which is not a ground provided by the statute. Learned advocate for appellant, therefore, submitted that the impugned judgment and order granting divorce, is contrary to the provisions of law, inasmuch as it does not provide for grant of divorce on the ground of 'irretrievable breaking down of marriage' and the ground on which the dissolution of marriage was sought by the Respondent husband was 'desertion'. The said ground of desertion by the Appellant wife has not been believed or accepted and at the same time it has been accepted that the Appellant wife has caused cruelty by not fulfilling the conjugal rights and has granted the decree of divorce, and therefore the impugned judgment and order granting the decree of divorce is exfacie bad and illegal. Learned advocate for appellant also referred to the issues raised in the H.M.P. No. 36 of 1998 at Exh.19 and pointedly emphasized that the issue has been specifically raised, as to whether it is established by the Respondent husband that the Appellant wife has committed a cruelty, meaning thereby there is no specific issue raised regarding 'desertion'.
6. Learned advocate for appellant, therefore, referred to the discussion about the cruelty in paragraph 28 and submitted that though on one hand, it has been observed that the cruelty has not been defined under the Act, on the other hand, while discussing the aspect of cruelty, it is observed that, if the Appellant wife is quarreling with the Respondent husband and threatening him to commit suicide, it would certainly cause serious effect on his health and life and thereafter also it is observed that the marriage is completely broken down and there is no sense in continuing the marriage ties. Thus, learned advocate for appellant submitted that the learned Judge has not framed any issue with regard to the ground available under Section 13(1)(ib) of the Act for dissolution of marriage, i.e. desertion and the learned Judge has framed an issue regarding cruelty and the entire discussion in the judgment is that the Respondent husband is deprived of enjoyment of conjugal rights as the Appellant wife has deserted, and therefore, it is cruelty. Thus, it is erroneous and contrary to the evidence on record.
7. Learned advocate for appellant also referred to the evidence of witnesses produced on behalf of the Appellant wife. For that purpose, learned advocate referred to the evidence of the Appellant wife at exh.49 and pointedly referred to her say in the examination-in-chief that, six months after the marriage, the Respondent husband was allotted a quarter at Vadodara and therefore the Appellant wife had requested that she may be taken to Vadodara, but the Respondent husband is said to have stated that, as and when his parents agree for that, he will take the Appellant wife to Vadodara. Thereafter, it is stated that the parents told that at an appropriate time, they will allow the Appellant wife to go and stay at Vadodara with the Respondent husband. Thereafter, the Appellant wife had gone to her parental house for delivery and at that time also she did talk to her father, who in turn, told the appellant wife that he will try for reconciliation through Nathukaka by talking to Vishnubhai - the father-in-law of the Appellant wife. The Appellant wife has further stated that, at that time her in-laws had informed that after the delivery, they will make necessary arrangements to take her back. The Appellant wife delivered a baby girl on 10.8.1996. The Appellant wife has specifically stated that when she had come to her parental house for delivery in June 1996, till the delivery, the Respondent husband had never visited her to take any care of them and no efforts were made to call her back also. It is stated that the Appellant wife had a talk with the Respondent husband on telephone and had stated that she wants to reside with him at Vadodara, but at that time also the Respondent husband had stated that only after his parents agree, she may join him at Vadodara and had cut the telephone. Thereafter, it was made a prestige issue by the father-in-law. Many efforts were made for reconciliation, but the father-in-law of the Appellant wife used to say that it has not been yet decided and they will reply as and when it is decided. Further, it is also stated by the Appellant wife that the Respondent husband had also approached 'Akhil Bhartiya Samajik Swasthya Sangh', and even at that time, she had remained present when the statements were recorded and the Appellant wife had shown her willingness to go to her matrimonial house. The Appellant wife has categorically stated that her husband had not shown any willingness to accept the Appellant wife and had asked for the divorce. The Appellant wife has stated that though the efforts were made by this organization for reconciliation, but, because of the attitude adopted by the Respondent husband and the in-laws, no fruitful result is achieved. Learned advocate for appellant submitted that even in the cross-examination when it was suggested about their strain relations, the Respondent husband has denied that the Appellant wife has any ill-will with the Respondent husband and the Appellant wife is ready and willing to go to reside with him. Therefore, learned advocate for appellant submitted that this evidence is supported by the deposition of appellant wife's father. Learned advocate for appellant referred to this statement, which is produced on record and emphasized that it is clearly recorded that the Respondent husband and in-laws were not ready for reconciliation as stated in the statement dated 19.2.1998. As against that, the statement of the Appellant wife recorded on 3.2.1998 is clearly suggesting that she was ready and willing to reconcile and go to her matrimonial house without any reservation. Leaned advocate for appellant also referred to the deposition of the father of the wife - Manubhai Patel at exh.87, who has supported the version of the Appellant wife. He had made the efforts for reconciliation through Nathukaka but they were conveyed by the father-in-law of the Appellant wife that they have not yet decided. Thereafter also, they made efforts twice or thrice, but there was no response. At that time also the Respondent husband is said to have stated that he would follow what his father decides. He has also stated that he had also made efforts to meet the Respondent husband, but the Respondent husband had refused to accept the wife against the wish of his father. He has further stated that when the father of Vishnubhai expired at that time they had shown willingness to send the Appellant wife - Purviben along with the daughter and at that time also, the father-in-law as well as the Respondent husband had shown their reluctance. Learned advocate for appellant also referred to the deposition of Sonabhai Patel at exh.73 and pointedly referring to this aspect submitted that even this witness has stated that the Respondent husband had said that he will follow what his father decides. Further, father-in-law - Vishnubhai said to have informed that he will not interfere as it is internal matter. Learned advocate for appellant referred to the deposition of Ishwarbhai Patel at exh.70 and submitted that he has also confirmed that he had called both the Respondent husband and the Appellant wife for reconciliation at his house; that he had found that they had no problems. He has also stated that the Appellant wife had not complained about the Respondent husband. Therefore, learned advocate for appellant submitted that from this evidence it can never be believed or accepted that the Appellant wife had deserted the Respondent husband or that she was not ready and willing to go to her husband. Learned advocate for appellant submitted that the statements recorded by an independent agency clearly suggests that the Appellant wife was ready and willing to join her husband at whatever place and ultimately she had also stated that she was willing to stay either at Vadodara or even at Ahmedabad with her in-laws and still they had declined. Learned advocate for appellant therefore submitted that this reflects the attitude and these are the statements recorded by an independent agency who had made attempts for reconciliation and this aspect ought to have been appreciated by the learned Judge while appreciating the evidence, which has not been considered at all. For that purpose, he again referred to the impugned judgment and submitted that there is no discussion focusing on this aspect. Learned advocate for appellant also referred to the evidence led on behalf of the Respondent husband and submitted that Sanjaybhai Patel, who has been examined, is the brother-in-law of the husband and though he has stated that when the Respondent husband refused to have the 'panipuri' (golgappa), the Appellant wife had slapped him. The learned advocate submitted that while considering or highlighting this incident, it is also required to be appreciated that other witness examined on behalf of the Appellant wife; Shri Ishwarbhai Patel, had stated that both the Respondent husband and the Appellant wife had no quarrel or problem when he had called them for reconciliation. Similarly, learned advocate for appellant referred to the deposition of Ramesh Ishwarbhai Patel, examined on behalf of the husband, who is the maternal cousin of the husband and who has stated that when he visited the matrimonial house of the Appellant wife, i.e. house of the Respondent husband, the Appellant wife was quarreling and shouting with 'bagonspray' in her hand and when he tried to pacify her, the Appellant wife is said to stated that she want to put all of them in jail. Learned advocate for appellant submitted that similar such witnesses who have been examined by the husband are tutored and they have given the evidence to support the ground or the averments and therefore, it could not have been accepted by the court below.
8. Learned advocate for appellant, therefore, submitted that it can reveal that as a wife, the Appellant wife was willing to go and stay with the Respondent husband when the quarter was allotted to him at Vadodara, but it was not allowed, which created the whole problem and thereafter also, even though, after the delivery, when the Appellant wife was willing to go back to her husband / matrimonial house, she was not taken back. Learned advocate for appellant submitted that the efforts made by an independent organization for reconciliation, would show that the wife was willing to go back to her husband and was willing for reconciliation. He pointedly referred to exh.81 and exh.82, which is a statement recorded during the proceedings of the reconciliation or the settlement with the help of 'Akhil Bhartiya Samajik Swasthya Sangh', and the statement of Vishnubhai is exh.81, where he is said to have stated that though the efforts were made for settlement, it has not been properly responded and the father of the wife is said to have stated that if the appellant husband takes her to the place where he is serving, then only she could resume cohabitation. It is also stated that thereafter the letters were addressed and there was no response. The appellant husband has also stated about the attitude that she had hostile attitude for the matters like vaccination to the child. Therefore, the wife Purviben was called and her statement was also recorded. She has also stated about the improper treatment and the father is said to have stated that efforts for reconciliation should be made. Thereafter also, it is recorded that the wife with the parents had remained present and was willing to go to the matrimonial house. Therefore, the husband is said to have been called and he is said to have stated that as the matter is before the Court regarding the divorce, he may not be called. Learned advocate for the appellant wife submitted that this reflect that there was willingness on part of the appellant wife to return to her matrimonial house. Learned advocate for appellant, therefore, submitted that, had this aspect along with deposition of the Appellant wife at exh.49 was appreciated properly, the court could not have come to the conclusion about the 'desertion', 'cruelty' and / or 'irretrievable breaking down of marriage'. Learned advocate for appellant also referred to exh. 101 and exh.102 and also referred to the evidence of Jakshaben Patel at exh.80 and submitted that she has also in the same way supported the version of the Appellant wife.
8.1 Learned advocate for appellant referring to the evidence and discussion thereof in the impugned judgment tried to emphasize that the evidence has not been properly appreciated. For that purpose he referred to page Nos. 13, 16, 18, 19 to 23 and 25 and emphasized that the evidence has not been properly appreciated. He strenuously submitted, referring to the discussion about the evidence of the Appellant wife and the cruelty in paragraphs 26 to 28 of the impugned judgment and order and submitted that it cannot be said that the concept of cruelty as accepted and defined in the judicial pronouncement was at all attracted. Learned advocate for appellant submitted that considering the evidence on behalf of the Appellant wife, it could never be said or suggested that the Appellant wife had deserted and / or there was any cruelty to the husband and, therefore, the impugned decree of divorce is bad and illegal.
8.2 Learned advocate for appellant, for this purpose, referred to and relied upon a judgment of the Hon'ble Apex Court in the case of Savitri Pandey v. Prem Chandra Pandey reported in 2002 (2) GLR 1369, which defines the 'cruelty' and, referring to head-notes (b) and (c) and discussion in paragraphs 10, 12 and 17, to bring home his submission as to when the divorce can be granted on the ground of cruelty. It was submitted that, as observed, the cruelty has to be distinguished from ordinary wear and tear of family life and cruelty cannot be decided on the basis of sensitivity of the petitioner. He also emphasized the observations in head-note (d) to emphasize his submission that 'irretrievable breaking down of marriage' is not a ground itself to dissolve the marriage, and he emphasized the observation in paragraph 17, which reads as under;
The marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down, no useful purpose would be served to keep it alive. The legislature, in its wisdom, despite observation of this Court has not thought it proper to prove for dissolution of the marriage on such averments. ....... The sanctity of marriage cannot be left at the whims of one of the annoying spouses.
Similarly, it was submitted referring to the observations made in this judgment in paragraphs 10 and 12 that, desertion has been explained and considered and it has been observed that, 'the party cannot be permitted to allege desertion'. Again he emphasized that in this judgment also, referring to paragraph 23, the court has observed that, 'the court would decline to grant relief and party cannot be permitted to take the advantage of his own wrong.' He submitted that it has been also observed, 'Approach of the court should be to preserve the matrimonial home and be reluctant to dissolve the marriage on asking of one of the parties.
8.3 Learned advocate for appellant also referred to and relied upon a judgment of the Hon'ble Apex Court reported in AIR 1988 SC 407 and referring to paragraph 7, he tried to emphasize as to what could be said when it can be said that the wife has deserted. He also referred to this observation to emphasize the submissions that on the one hand the attitude adopted by the other side, i.e. the Respondent husband is such, that would make the Appellant wife's life difficult and then to complain that she has deserted.
8.4 Learned advocate for appellant also referred to and relied upon a judgment of the Hon'ble Apex Court reported in and submitted that in this case also the facts are similar to the present case, inasmuch as in that case also the husband had created a situation by which the wife was not welcome and infact the husband had remarried and was having a child from the second marriage. Referring to the observations made by the Hon'ble Apex Court, learned advocate for appellant emphasized that as observed in this judgment, the Hon'ble Apex Court after referring to Section 15 has clearly observed that the second marriage was hit by Section 15 and husband's plea for grant of divorce on the ground of irretrievable breaking down of first marriage was untenable and it has been observed that he could not be given benefit of his own wrong.
Learned advocate for appellant, therefore, submitted that in the facts of the present case also, the Respondent husband had, during the pendency and subsistence of first marriage, had developed relations and married with another women and is having a child and, perhaps that was the reason, he was reluctant to accept the wife. Therefore, learned advocate for appellant submitted that the Respondent husband cannot be permitted to take undue advantage of his own creation or situation created by him and blaming the Appellant wife that she had deserted or had committed cruelty. Therefore, learned advocate for appellant submitted that the court below has failed to appreciate the evidence and infact has totally ignored the evidence led by the Appellant wife, which has resulted in mis-carriage of justice and therefore, the present appeal may be allowed.
8.5 Learned advocate for appellant also referred to a judgment of the Hon'ble Apex Court reported in AIR 2001 SC 1709 and emphasized the observation with regard to grant of divorce as it has been observed by the Hon'ble Apex Court that divorce cannot be granted merely on the ground that marriage has irretrievably broken down. Husband, who has committed wrong, cannot be given advantage of his own wrong. He emphasized the observation in this judgment and submitted that divorce on the ground of desertion of wife, who was still prepared to live with him, was denied and therefore, learned advocate for appellant submitted that in the facts of the present case also, the Appellant wife is ready and willing to reconcile and stay with the Respondent husband and therefore the decree of divorce could not have been granted on the ground of desertion, cruelty or irretrievable breaking down of marriage. Learned advocate for appellant submitted that as it transpires from the impugned judgment and order, the aspect of cruelty has been considered without appreciating the fact that the Appellant wife has not deserted the husband, similarly, while considering the question of grant of divorce, which has been granted on the ground of irretrievable breaking down of the marriage, it is not permissible. He also referred to the observations made in paragraph 18 of the judgment of the Hon'ble Apex Court, reported in AIR 2001 SC 1709 and submitted that precisely this point has been discussed in this judgment and it was observed that the court below recorded a finding erroneously. He pointedly emphasized the observations made in paragraph 19 and submitted that a similar situation was there in that case also with regard to the wife living at a particular station. Therefore, learned advocate for appellant submitted that, as observed in this judgment, the decree of divorce cannot be granted on irretrievable breaking down of marriage easily, when there is no evidence or justification for the same.
9. Learned advocate Mr. M.C. Bhatt for the Respondent husband submitted that while appreciating the impugned judgment and the evidence and material, the Court may look at the substance and it would not make any difference whether a particular provision or particular ground is referred to. Learned advocate for respondent submitted that while appreciating the evidence, the Court would be conscious about the fact that it is neither a criminal case nor a civil case, but is regarding the human relationship, and therefore, while examining the material and evidence, the court has to bear in mind the human element and the aspect of human relationship, where one has to consider the preponderance of probabilities, for which, there cannot be any specific evidence. But, taking the evidence entirely and the cumulative effect thereof, the court has to consider, whether the conclusion arrived, is just and proper, and the cumulative effect of the entire evidence would suggest about having established the case by one side or not.
9.1 Learned advocate for respondent submitted that the Respondent husband had filed the aforesaid Family Suit No. 329 of 2000 seeking decree of divorce on the ground of desertion and cruelty, and the court below, having appreciated the evidence, accepted the version and granted the divorce. Therefore, in the present appeal, it is required to be considered whether the Respondent husband has made out a case for cruelty and this Court may also consider the appreciation of evidence by the court below in arriving at the conclusion in the impugned judgment. Learned advocate for respondent also submitted that, for that purpose, whether the ground of cruelty has been established or not, one has to consider various factors, as it depends upon the circumstances, the society, the changed social order and other relevant factors of the case. Learned advocate for respondent submitted that though the petition for divorce was filed on the ground of desertion and cruelty, the learned Judge has also focused and considered the aspect of irretrievable breaking down of marriage, which is not a ground provided by the statute. However, he referred to the observations made by the Hon'ble Apex Court in AIR 1994, SC 710 and referring to the observation in this judgment, he pointedly emphasized the observations made therein. Learned advocate for respondent also referred to the judgment of the Hon'ble the Apex Court in the case of Samar Ghosh v. Jaya Ghosh reported in 2007 (2) GLR 1520, and submitted that, in this case before the Hon'ble the Apex Court the divorce on the ground mentioned in Section 13(ia) had been considered and discussed at length, and the observations have been made in paragraphs 37 and 38, to which, he pointedly invited the attention. He emphasized the discussion made by the Hon'ble Apex Court referring to the concept of cruelty. For that purpose, he referred to paragraph 37 of the judgment and submitted that the Hon'ble the Apex Court has considered 'Shorter Oxford Dictionary', wherein, 'cruelty' is defined as under:
the quality of being cruel; disposition of inflicting suffering; delight in or indifference to another's pain; mercilessness; hardheartedness.
The term 'mental cruelty' has been defined in 'the Black's Law Dictionary' (8th Edition, 2004) as under:
Mental Cruelty - As a ground for divorce, one spouse's course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse.
The concept of cruelty has been summarized in Halsbury's laws of England (Vol.13, 4th Edition Para 1269) as under:
The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts, but of injurious reproaches, complaints, accusations or taunts. In case where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which render them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The Court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complaint's capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty, but it is an important element where it exists.
9.2 Learned advocate for respondent submitted that as observed in paragraph 42 regarding the aspect of cruelty, the Hon'ble the Apex Court in earlier judgment has observed;
in such cases the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or willful ill-treatment.
9.3 Learned advocate for respondent further referred to the observations quoted, referring to the earlier judgment reported in : [1982]1SCR695 :
Moreover, to establish legal cruelty, it is not necessary that physical violence should be used. Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which lead to mental or legal cruelty.
9.4 Again, learned advocate for respondent referring to a judgment of the Hon'ble Apex Court in case of Chetan Dass v. Kamla Devi reported in : [2001]3SCR20 , which has been quoted, has emphasized the observation:
Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well-knit, healthy and not a disturbed and porous society. The institution of marriage occupies an important place and the role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of 'irretrievably broken marriage' as a strait-jacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case.
However, he submitted that in this judgment it has been specifically observed that grant of divorce on the ground of irretrievable breaking down of marriage cannot be accepted as straight-jacket formula and it has to be considered on the facts and circumstances of each case. He, therefore, submitted that one has to consider this aspect with reference to the facts of each case and it cannot be said that irretrievable breaking down of marriage or the situation prevailing between the spouse cannot be considered and appreciated. He referred to the observations made in the judgment reported in 2007 (2) GLR 1520 referring to the report of the Law Commission, which is specifically referred to along with the recommendations, which are quoted:
Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.
He also referred to paragraph 94 and submitted that it cannot be argued that the cruelty has not been committed or the harassment has not been caused to the Respondent husband and the marriage had not reached to a situation where it is not workable, and therefore, the conclusion arrived at by the court below, that it is irretrievable break down, is erroneous. Therefore, learned advocate for respondent referring to this aspect further relied upon a reported decision of the Hon'ble the Apex Court reported in : AIR2005SC3297 and submitted that this aspect has been considered with respect to the Hindu marriage Act, 1955, and the divorce on the ground of cruelty and desertion has been discussed, and again this aspect of irreparable breaking down of marriage has been considered. He emphasized that in that case also, as the parties had separated for long and there was no scope for reconciliation, the court came to the conclusion and confirmed the order of the family court granting divorce. In the facts of the present case also, the parties have separated since 1996 and considering the fact that 12 years have passed by, there is no scope for reconciliation and further development, like in the present case husband having already married and having a child, it cannot be said that there is any scope for any working out, and therefore, the conclusion arrived at in the impugned judgment that the irretrievable break down of marriage is just and proper and the court may not interfere in this conclusion and finding.
9.5 Learned advocate for respondent referred to the evidence of both the sides briefly and tried to emphasize that from the evidence considered as a whole, it is evident that the Appellant wife had shown reluctance to stay in the joint family with the parents of the husband, who was doing up-down as he was serving at Vadodara, and therefore, there was no question of living separately. Thereafter, she had gone to her parental house and thereafter, as it transpires, the insistence was that she should live only at Vadodara, and for that purpose, the relations were spoiled, resulting into a stage, where there was no scope for reconciliation. Further, the say on part of the Appellant wife that she was ready and willing at a later stage, by itself would not be sufficient, as a bare word cannot be accepted and it has to be considered in light of the entire evidence with reference to a particular incident like slapping the Respondent husband on a trivial matter when he refused to have golgappa (panipuri). Learned advocate for respondent also submitted that it is required to be appreciated, as it has been brought on record as to the attitude of the Appellant wife, which has been focused in this evidence led on behalf of the Respondent husband that one of the relative brother-in-law of the Respondent husband, who visited the house in the evening, has stated that a scene was created and there was a quarrel and the Appellant wife with Begonspray in her hand threatening to commit suicide to see that the family of the Respondent husband is punished. Learned advocate for respondent submitted that even if it has not been accepted or believed in toto, it is possible that such a kind of situation could be created and the family of the Respondent husband would be apprehensive particularly when the Respondent husband is doing job in Vadodara, and therefore, there might be some kind of reservation before accepting the Appellant wife in reconciliation, which has been highlighted as if the husband was not willing to accept. Therefore, learned advocate for respondent submitted that the evidence has to be appreciated in this context, and therefore, having considered all these aspects, the court below has come to the conclusion that in such a situation also, considering that there has been separation since 1996, which is long enough to breakdown the marriage irretrievably, it cannot be said that the conclusion arrived at is improper.
9.6 Learned advocate Mr. Solanki in rejoinder submitted that the court below has not appreciated the evidence and has totally ignored the evidence on behalf of the wife. It was submitted that the allegations and imputations against the wife are also referred to and there has been rebuttal in her evidence, which has not been considered. For that purpose learned advocate for appellant submitted that though the allegations about cruelty has been made, she threatened to commit suicide, but the gravity of the same is required to be examined and scrutinized. Learned advocate for appellant submitted that neither neighbour nor independent witness is examined, therefore, merely on the say of the witnesses, who is related to the husband, the evidence cannot be accepted.
9.7 Learned advocate for appellant, referring to the irretrievable breaking of marriage, referred to the observations made by the Hon'ble the Apex Court in its judgment reported in 2004 (7) SCC 4747 and referring to head-note (a) and the observations made, submitted that it has to be considered in light of the facts of each case. In the facts of this case before the Hon'ble the Apex Court, the husband had failed to take wife to the matrimonial home. In the facts of the present case also no attempts were made by the Respondent husband to get the Appellant wife back.
9.8 Learned advocate for appellant submitted that in any case, Court may consider the adequacy of maintenance granted while granting the divorce, inasmuch as, in all Rs. 3000/- has been granted for the maintenance of the Appellant wife as well as towards the maintenance of the young daughter, which is inadequate considering the fall in value of the rupee and also considering the fact that the husband is having a job in GSFC. Therefore, considering the income of the husband along with the future prospect and the responsibility of the wife, who has to meet with the expenses of bringing up the daughter and also her marriage expenses, there has to be enhancement.
9.9 Learned advocate Mr. Bhatt fairly conceded on this aspect and stated that the court may revise the maintenance as it may deem fit as the alimony granted in the impugned judgment is inadequate considering the fact that the wife has to bring up the young daughter, and therefore, learned advocate Mr. Bhatt has fairly conceded and left up to the court any appropriate amount may be fixed by the court considering the income of the husband and the status and other liability by both the husband and wife. It was submitted that appropriately it can be revised.
10. In view of these rival submissions, it is required to be considered whether the impugned judgment passed by the court below in Family Suit No. 329 of 2000 dated 18.3.2002 calls for any interference.
11. Before elaborating and appreciating the submissions which have been canvassed by both the sides, a few facts are required to be borne in mind.
11.1 It is not in dispute that there has not been any kind of allegations about any harassment or any kind of demand for dowry and it is a matter with regard to an adjustment by the appellant wife in the matrimonial house. As it has been referred to and also pointed out, the Appellant wife had no quarrel or differences with the Respondent husband, but the quarrel started with regard to the Appellant wife's staying separately with the Respondent husband at Vadodara and not staying at Ahmedabad with in-laws. At the same time, the say of the Respondent husband has been that he was doing up-down as he was serving at Vadodara and after some time the Respondent husband was allotted a quarter, but, as the Appellant wife was pregnant, she went for delivery to her parental home. It is after this point, both the sides have their version of separation. As per the say of the Appellant wife she was not called back by the Respondent husband and the Respondent husband did not care and had not even gone to see the Appellant wife before delivery. On the other hand, the say of the Respondent husband is that, after the delivery he and his family members had visited and again the same issue with regard to her staying either at Vadodara or at Ahmedabad was the real issue made and, ultimately the Appellant wife deserted and did not return to the matrimonial home.
Therefore, in light of this, if the evidence, which has been referred to by both the sides with much emphasis, is considered, it reveals that it is a dispute relating to compatibility of the Appellant wife to stay with the in-laws in joint family, and after sufficient time has lapsed, the efforts for reconciliation were made, to which both the sides have referred and the reconciliation efforts through the organization, Legal Services Authority were made, and it is at that time the Appellant wife is said to have later on gave up her reservation or insistence for staying separately, and is said to have agreed to go either at Vadodara or at Ahmedabad to stay in the matrimonial home to join the husband. This aspect has been much emphasized by learned advocate Mr. Solanki to support the submissions that the Appellant wife was always ready and willing to go to her matrimonial home and / or for reconciliation, and, therefore, it cannot be said that the Appellant wife had deserted the Respondent husband. Further, he has emphasized that the Appellant wife cannot be said to have deserted the Respondent husband. The ground of cruelty on the basis of which the Respondent husband had claimed divorce by filing the aforesaid Family Suit No. 329 of 2000 would not have been justified, and, therefore, the court below has erred in appreciating the evidence on record.
Learned advocate Mr. Solanki has also, in support of this submission with regard to desertion, referred to at length the observations made by the Hon'ble Apex Court in the judicial pronouncement and also referring to the aspect of cruelty has emphasized, as to what would amount to cruelty and in light of the evidence, it cannot be said that the Appellant wife can be blamed for desertion and therefore there was no cruelty. He also emphasized that, on the contrary the husband had got involved and admittedly now he is married and having a child, and therefore, on the ground of irretrievable breaking down of the marriage also, the Appellant husband cannot be allowed to take advantage of his own wrong. For that purpose, Section 13(1)(ia) and 13(1)(ib) with regard to desertion and cruelty are required to be considered, which reads as under:
(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition;
12. This aspect has been considered by the court and it depends upon the factual background and the material evidence placed on record in each case as to whether it has been established that the wife has deserted the husband and for that matter, the court is required to appreciate the evidence. Therefore, the main emphasis or the thrust of the argument by learned advocate Mr. Solanki was with regard to desertion and whether it can be said to have been established by the husband that the wife has deserted or not. For that purpose, though it has not been referred, one is required to consider a judgment of the Hon'ble the Apex Court reported in AIR 1957 SC 176 and there the observations have been made in paragraphs 16 to 21 regarding the desertion and animus deserendi, as observed and considered in that judgment, 'in ordinary desertion the factum is simple: It is an act of the absconding party in leaving the matrimonial home.' The Hon'ble the Apex Court, while considering the concept animus deserendi, referred to Halsbury's Laws of England (3rd Edition) Vol. 12, it has been specifically considered that,
Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed as for short the home. The person who actually is not cohabiting personally is not necessarily the deserting party.
13. It has been observed in this judgment, '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.'
14. The Blacks Law Dictionary has described the word 'desertion' as follows:
The willful and unjustified abandonment of a person's duties or obligations, esp. to military service or to a spouse or family.
In family law, the five elements of spousal desertion are (1) a cessation of cohabitation, (2) the lapse of a statutory period, (3) an intention to abandon, (4) a lack of consent from the abandoned spouse, and (5) a lack of spousal misconduct that might justify the abandonment. .... Also termed gross neglect of duty.
It also refers to the 'constructive desertion', criminal desertion and obstinate desertion. The obstinate desertion would mean:
Desertion by a spouse who persistently refuses to return to the marital home, so that the other spouse has grounds for divorce. Before the advent of no-fault divorce, this term was commonly used in divorce statutes. The term was often part of the longer phrase willful, continued, and obstinate desertion.Therefore, what is required to be considered is for the aspect of desertion is not merely the factum animus deserendi, but one is required to consider whether by creating the circumstance, the wife was compelled to leave the matrimonial home. On the basis of the material and facts as discussed above, which have been referred to by both the sides, situation was created, which can be said to have compelled the Appellant wife to leave the matrimonial home. It is not in dispute that there was some reluctance on part of the Appellant wife to live at Ahmedabad and her insistence was to live at Vadodara and that is where the problem started and ultimately led to the separation. It is not in dispute that the separation has now been for more than a decade.
It is in these background the evidence is required to be appreciated and the submissions are required to be considered. Further, a judgment of the Hon'ble the Apex Court, reported in 2007 (2) GLR 1520 (supra), referred to and relied upon by learned advocate Mr. M.C. Bhatt, requires to be appreciated.
Again referring to this aspect, the Hon'ble the Apex Court had also referred to and relied upon the earlier judgment in the case of Chetan Dass v. Kamia Devi : [2001]3SCR20 (supra).
Therefore, considering this aspect and the fact that it is more an aspect touching human relationship and has rightly observed and quoted in this judgment. Lord Tucker in Jamieson v. Jamieson 1952 (1) All ER 875 aptly observed that:
Judges have always carefully refrained from attempting a comprehensive definition of cruelty for the purposes of matrimonial suits, and experience has shown the wisdom of this course.Further, it has been quoted:
I think that 'cruel' is not used in any esoteric or 'divorce Court' sense of that word, but that the conduct complained of must be something which an ordinary man or a jury would describe as 'cruel' if the story were fully told.Further, the Hon'ble Apex the Court has also referring to the earlier judgment, reported in : AIR2005SC534 has quoted:
The court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse's conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.It is, in this context, the entire evidence has to be considered and the Hon'ble Apex the Court in this judgment, reported in 2007(2) GLR 1520 (supra) in paragraph 94 has clearly observed that, no uniform standard can ever be laid down for guidance as regards the cruelty on them. They have given an illustrations for the purpose of guidance and referring to some of the grounds and the ground (xiv) provide:
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.Therefore, while considering the aspect of cruelty based on the desertion or the separation, the Hon'ble the Apex Court has, in the aforesaid judgment, while laying down the broad guidelines as to what should constitute cruelty, has also provided this aspect of continuous long separation and also the point of no return or repair / reach by the parties. However, it is required to be appreciated that such matters are having their roots with the human relationship, emotions and mutuality. Therefore, as discussed above, the Hon'ble the Apex Court has also said that no straight-jacket formula could be laid down and yet while laying down the broad guidelines as to the cruelty, has also referred to this aspect of long separation and irretrievable breaking down of marriage. It is in this context, though the court below has, while referring to the aspect of desertion and cruelty, discussed about irretrievable breaking down of marriage is not a separate ground but that of the cumulative effect and totality and circumstances which have been considered by the court below.
Therefore, the another facet of the argument which has been much emphasized by learned advocate Mr. Solanki referring to the provisions of Section 13(1)(ia) and 13(1)(ib) of the Act, emphasizing that the divorce can be claimed only on the ground provided by the statute. He had further emphasized that though the petition for divorce is based on the ground of desertion and cruelty, infact the learned Judge has erred in referring to the aspect of irretrievable breaking down of marriage, which is erroneous and all together different and could not have been considered as ground for divorce. This submission has to be considered in light of what has been discussed hereinabove. The court below, while appreciating the evidence qua desertion as discussed, one is required to consider the mutuality aspect in such matrimonial bond or the ties and when one of the parties has failed to discharge that obligation and the desertion by the wife cannot be attributed to any circumstances, which are so created that would compel the wife to leave the matrimonial home, then it is her willful desertion because of some incompatibility or the difference of opinion with regard to her residing in the joint family. If that cannot be considered as any kind of a situation, which could be said to have compelled her to leave the matrimonial home and admittedly when she had left the matrimonial home and even after the delivery when she has not resumed cohabitation for a long period, the court below cannot be said to have made any error in appreciation of the evidence while deciding the Family Suit No. 329 of 2000 filed by the Respondent husband for divorce on the ground of desertion and cruelty. The desertion or long desertion without any justification would certainly amount to cruelty as discussed hereinabove and, if that is the valid reason accepted by the statute as a ground for divorce, the court is required to appreciate and consider on the basis of evidence. Therefore, on the basis of the evidence as stated and discussed hereinabove, the court below has given a finding as regards the desertion and cruelty, which, in the opinion of this Court, cannot be said to be perverse or contrary to the established principles of law. The submissions made by learned advocate Mr. Solanki for the Appellant wife that the evidence led by the Appellant wife has not been considered at all or the court below has failed to appreciate, is also misconceived though learned advocate Mr. Solanki has much emphasized referring to the subsequent efforts for the reconciliation. However, it is required to be appreciated with reference to exh.81 and exh.82, which is the statement recorded during the proceedings for reconciliation or the settlement. It clearly reveals that father of the wife is said to have stated that if the appellant husband takes her to the place where he is serving, then only she could resume cohabitation. In any event, at a later stage the Appellant wife stating that she is willing to go back even at Ahmedabad or Vadodara, but it has to be considered with reference to the passage of time, the circumstances which emerged and also the fact that such a willingness or giving up of the reservation is at a stage where they have reached the point of no return. One is also required to consider the evidence with regard to the attitude of the Appellant wife though we may not attach much significance, but the Appellant wife is also said to have slapped the husband for a trivial matter of having golgappa (panipuri). Further, the Appellant wife is said to have threatened to consume poison to see that the husband and his family members are put to difficulty. It is in light of these circumstances, even if her say that reconciliation are not readily accepted inasmuch as considering the state of affairs, the provisions of law like Section 498A of IPC, etc. could put the family members of the Respondent husband into an awkward situation, and therefore, at a much later stage, even if such reconciliation is suggested, there could be reservation on their part, that is the Respondent husband and his parents. These are the aspects, touching the human psychology, human behaviour and it has a reference to not only one aspect or one say, which a law or provision of law cannot define in straight-jacket formula nor it could be stated, but it has to be considered in the given set of circumstances and the evidence brought before the court.
Further, much emphasis is given by learned advocate Mr. Solanki, referring to the ground prescribed by the statute for divorce, i.e. desertion and cruelty and the learned Judge having committed an error in granting divorce on the ground of irretrievable breaking of marriage, and therefore the judgment is erroneous, is required to be appreciated. As discussed hereinabove, the court below has, while appreciating and considering the totality of the facts and circumstances, has considered the desertion and the cruelty, which is one of the ground provided for divorce and has independently referred to considering the length of time of their separation, i.e. is the marriage which has broken down irretrievably. Therefore, it cannot be said that there is any material error on part of the court below in appreciating the evidence as sought to be canvassed.
A useful reference can be made to a judgment of the Hon'ble the Apex Court in a judgment reported in 2007 (2) GLR 1520. Again referring to the long separation the Hon'ble the Apex Court has observed, 'The separation for sufficient length of time would be an indicator that marriage has broken down.', and has also observed, 'When breakdown is irreparable, then divorce should not be withheld.'. It has also been emphasized and observed, 'Considering the facts of the case that the substratum of the marriage was lost and the parties cannot be compelled to live together as the parties had no feelings and emotions left.
15. A useful reference can also be made to a judgment of the Hon'ble the Apex Court reported in : AIR2005SC3297 as referred to and relied upon by learned advocate Mr. M.C.Bhatt. It is required to be appreciated that in that case also the Hon'ble the Apex Court has considered the aspect of ground of divorce, mainly desertion and cruelty, and has also considered irretrievable breaking down of marriage. In the facts of that case also, the quarrel started and the wife separated only on the ground that the husband was not agreeing to her proposal for living separately from the family, which resulted into a desertion by the wife. The court below has considered the evidence and accepted that it was cruelty meted out by the wife to the husband and the court below granted the decree of divorce and ultimately the matter was before the Hon'ble the Apex Court, and considering this irretrievably breaking down of marriage, the Hon'ble the Apex Court has observed referring to the facts of that case in paragraph 21 regarding desertion and long separation, a animus deserendi and had affirmed the approach of the family court granting a decree of divorce. It has also been observed by the Hon'ble the Apex Court in this judgment, 'In the following two cases this Court has taken consistent view that, where it is found that the marriage between the parties has irretrievably broken down and has been rendered a deadwood, exigency of the situation demands, the dissolution of such a marriage by a decree of divorce to put an end to agony and bitterness: (a) Ajnana Kishore v. Puneet Kishore : (1993)4SCC232 , (b) Swati Verma v. Rajan Verma : AIR1994SC710 '. However, it has been observed:
Likewise, in the following three cases, this Court has observed that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case and those facts have to be viewed as to the purpose which is revealed by those facts or by conduct and expression of intention, both anterior and subsequent to the actual act of separation: (a) Sanat Kumar Agarwal v. Nandini Agarwal : AIR1990SC594 (b) Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi : AIR2002SC88 , (c) G.V.N. Kameswara Rao v. G. Jabili : [2002]1SCR153 .
16. Further, in paragraphs 27 and 28, the Hon'ble the Apex Court has also made a reference to the earlier decisions of the Hon'ble the Apex Court and exercise of power under Article 142 of the Constitution of India. However, the Hon'ble the Apex Court referring to its earlier decision in the case of V. Bhagat v. D. Bhagat : AIR1994SC710 has quoted:
Before parting with this case, we think it necessary to append a clarification. Merely because there are allegations and counter-allegations, a decree of divorce cannot follow. Nor is mere delay in disposal of the divorce proceedings by itself a ground. There must be really some extraordinary features to warrant grant of divorce on the basis of pleadings (and other admitted material) without a full trial. Irretrievable breakdown of the marriage is not a ground by itself. But while scrutinizing the evidence on record to determine whether the ground(s) alleged is / are made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind. The unusual step as the one taken by us herein can be resorted to only to clear up an insoluble mess, when the court finds it in the interest of both the parties.
17. These observations are the answer to the contentions raised by learned advocate Mr. Solanki as he had emphasized on the same way referring to the similar observations referred to and quoted in the judgment referred to and relied upon by him, particularly the judgment reported in (2000) 1 SCC 1709 and : [2001]3SCR20 as well as . However, though the Hon'ble the Apex Court made a reference to the exercise of the powers under Article 142, has nevertheless referred to the aspect of irretrievably breaking down of marriage where it is not possible to reconcile and when the parties have reached such a stage that instead of refusing such divorce, it is desirable to clear up an insoluble mess in the interest of both the parties. It is required to be mentioned that the judgment of the Hon'ble the Apex Court reported in 2007 (2) GLR 1520, is a subsequent judgment given by three judge bench again referring to all these aspects where they have particularly laid down guidelines as discussed hereinabove and it has also made a reference to irretrievable breaking down of marriage as one of the aspects to be considered. In other words, even though it may not be a ground, but when the divorce is sought on the ground provided in the statute, Hindu Marriage Act, like desertion and cruelty and on appreciation of evidence and also considering the cumulative effect thereof, if ultimate conclusion or the picture that emerges is that the parties have reached a point of no return and the marriage has broken down irretrievably, coupled with the fact that the long separation, which has been indicative of total snap of ties, emotions or the mutual feelings, meaning thereby the substratum is lost, then it is also required to be considered. Thus, it is the cumulative effect of the entire evidence which has to be considered. Therefore, considering this aspect, the only point, which is required to be considered, can the impugned judgment and order, after considering the aspect of desertion and cruelty, be said to be erroneous.
18. The Hon'ble the Apex Court in its judgment reported in 2007 (2) GLR 1520 in paragraph 94, referring to the aspect of cruelty has infact considered this aspect also and therefore it cannot be said that the court below has committed an error and granted a divorce on the ground of irretrievable breaking down of the marriage. It cannot be read into isolation but has to be considered on the basis of the evidence and the ground mentioned in the petition for the divorce namely desertion, cruelty, etc. provided by the statute.
19. Moreover, a useful reference can also be made to a judgment of the Hon'ble the Apex Court reported in : AIR2008SC2296 , wherein the Hon'ble the Apex Court has considered the scope of the first appeal against the trial court's decision and also relevant factors which should be kept in mind by the first appellate court before reversing the judgment of the trial court. It has been observed:
It is no doubt true that the High Court was exercising power as the first appellate court and hence it was open to the Court to enter into not only questions of law but questions of fact as well. It is settled law that an appeal is a continuation of suit. An appeal thus is a rehearing of the main matter and the appellate court can reappraise, reappreciate and review the entire evidence - oral as well as documentary - and can come to its own conclusion.
20. At the same time, however, the appellate court is expected, nay bound, to bear in mind the finding recorded by the trial court on oral evidence. It should not forget that the trial court had an advantage and opportunity of seeing the demeanour of witnesses and, hence, the trial court's conclusions should not normally be disturbed. When the court of original jurisdiction has considered oral evidence and recorded findings after seeing the demeanour of witnesses and having applied its mind, the appellate court is enjoyed to keep that fact in mind. No doubt, the appellate court possesses the same powers as that of the original court, but they have to be exercised with proper care, caution and circumspection. When a finding of fact has been recorded by the trial court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial court in appraisal of evidence is erroneous, contrary to well-established principles of law or unreasonable. ...Thus, three requisites should normally be present before an appellate court reverses a finding of the trial court:
(i) it applies its mind to reasons given by the trial court;
(ii) it has no advantage of seeing and hearing the witnesses; and
(iii) it records cogent and convincing reasons for disagreeing with the trial court.
Referring to the earlier judgment in case of Sarju Pershad, it has been quoted:The duty of the appellate court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial court arrived at or whether there is an element of improbability arising from proved circumstances which, in the opinion of court, outweighs such finding.
21. Another submission which was finally made by learned advocate Mr. Solanki for the Appellant wife with regard to insufficiency of the alimony for both herself as well as for the daughter is required to be considered.
22. Though no material has been placed on record, learned advocate Mr. Solanki submitted that the court may consider the fact that the Respondent husband is employed with GSFC and is well-placed and the amount of Rs. 3000/- granted by way of alimony for both the Appellant wife and daughter is too less. He further submitted that the court may consider to revise in view of the fall in value of money and the dearness allowance which has been admittedly increased time and again and therefore considering that aspect, there has to be some modification.
23. As the learned advocate Mr. M.C. Bhatt for the Respondent husband has fairly stated that it requires consideration, we are not required to therefore deal with in much detail, particularly when there is no sufficient evidence also, but considering on general principles, the amount of Rs. 3000/- awarded by the court below towards alimony for both the Appellant wife and daughter is too less and considering the fact that the minor daughter is required to be brought up and her future expenses for the marriage, etc. and also considering the fall in the value of money and the inflation etc. and the fact that the Respondent husband is well-placed, having a steady job, it would be in fitness of things if the same is doubled, i.e. same is increased to Rs. 6000/- per month for both the Appellant wife as well as daughter taken together, i.e. Rs. 3000/- for each of them towards their maintenance.
24. Accordingly, the present First Appeal hereby stands dismissed. The judgment and order passed by the court below granting the decree of divorce in Family Suit No. 329 of 2000 is hereby confirmed. However, on the aspect of alimony or the maintenance as observed, is revised from the date of the judgment and order.